This is not a substitute for legal advice.  An attorney must be consulted.

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The three primary legal requirements for federal trademark registration are:

            (1)            Interstate Commerce.  Congressional power to regulate trademarks arises under the Commerce Clause of the Constitution (U.S. Const. art. I, § 8, cl. 3), and, thus, only trademarks that have been used in interstate commerce may be federally registered.

            (2)            Written Application.  Federal trademark registration requires filing a written application with the U.S. Patent and Trademark Office (PTO).  A form for the written application is attached as part of this program.  The specifics of the application depend on whether the mark has actually been used in commerce, rather than being the subject of a bona fide intent-to-use.  However, in either case, the written application must include: 

            a)         A description of the goods or services the mark was or will be used to identify; the manner of use or intended use;

            b)         A statement that to the best of the applicant's knowledge, no other person has the right to use the mark;

            c)            A drawing of the mark;

            d)         Specimens (the mark as actually applied, affixed or attached to the goods) or facsimiles of the trademark as used; and

            e)            An application fee of $245 per class (1996).

Use-based applications must also include:

            f)            A statement of the dates of first use. 

Intent-to-use applications must also include:

            g)            A statement of a bona fide intention to use; and

            h)         A verified statement that the mark is in use in commerce, filed at least within 30 months after the PTO issues a notice of allowance.

            (3)            No Likelihood of Confusion with Existing Marks.  After receiving the application, the PTO conducts a search of existing trademark applications and registrations to determine whether similar marks exist.  An individual may not register a trademark which so resembles a mark previously used by another where use of the trademark is likely to cause confusion, mistake or deception as to the origin of the product.  15 U.S.C. § 1052.  If the trademark application is allowed by the trademark examiner, the mark is published to allow public opposition to registration.  Other mark owners have 30 days to oppose registration of the mark.  If the mark is not successfully opposed, the PTO issues a certificate of registration and enters the mark on the Principal Register for a ten year term. 

Between the fifth and sixth anniversaries of registration, the owner must submit an affidavit or declaration of continued use of the mark.  Failure to do so results in cancellation of the registration.  15 U.S.C. § 1058(a).  The ten-year registration is renewable indefinitely. 

A trademark application may be filed by the applicant, without an attorney.  The description of goods or services in the trademark application, however, can be critical to problems that may arise during registration.  Due to the complex legal issues involved, consulting a trademark attorney is highly recommended.  Before visiting an attorney, the applicant should complete the Trademark Questionnaire attached as part of this program.