Frequently Asked Questions

What is a trademark?

A trademark includes any word, name, symbol, or logo, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Service marks are identical to trademarks, but they are for services. Trademarks and service marks (also referred to as "marks") are often called "brand names."

Do I have to register my trademark?

No, but federal registration has several advantages, including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services described in the registration.

What do TM, SM, and ® mean?

In the United States, "TM" is the symbol most often used to show that a trademark is unregistered, or used in "common law." Likewise, in the United States, "SM" is the symbol most often used to show that a service mark is unregistered, or used in "common law." "®" is the symbol recognized around the world for registered trademarks and registered service marks.

What are common law rights?

In the United States, Federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark. However, in general the first to either use a mark in commerce or file an intent to use application with the Patent and Trademark Office has the right to use and registration.

How do I start the trademark process with the OGC?

Please complete our brief questionnaire (found under the Questionnaires tab on the left) and send it to us electronically along with your request for our services. If you are a NIH client, please complete the NIH Questionnaire. If you are a HHS OPDIV or STAFF DIV please select and complete the HHS OPDIV Questionnaire. Your answers will help us to understand how the mark will be used.

If you are an institute or center within the National Institutes of Health and you are considering a new logo or design mark, you must first obtain approval from the Office of Communications and Public Liaison (OCPL) before we can begin any trademark application work.

Once we have received your completed questionnaire and an image of the logo, we will conduct a clearance search and provide you with a report and recommendations. Ultimately the U.S. Patent and Trademark Office (USPTO) determines which marks can be registered.

Is it difficult to obtain a trademark registration?

If we have cleared your proposed mark and recommend applying for registration we will prepare all the necessary documents and will electronically file the application with the USPTO. Once the application is filed we will carefully monitor the process and keep you informed about the status of the pending application. Generally registration takes between 12-18 months.

How long does the USPTO application process take?

Each application undergoes a thorough examination by a Trademark Examining Attorney. It is difficult to predict how long it will take for an application to mature into a registration, because so many factors can affect the process. However, the total time for an application to be processed may be anywhere from almost a year to several years, depending on the basis for filing and the legal issues that may arise in the examination of the application.

Are there costs associated with obtaining a trademark registration?

The USPTO fees are to cover the costs associated with filing the application and for the substantive review process. The filing fees for a trademark application are as based upon the number of classes of goods and or services listed in the application. Generally each class is $325 per class for an application filed electronically or $375 per class for an application filed on paper. These fees will be charged not only when a new application is filed, but if and when also when payments are made to add classes to an existing application. If your application is filed based on a bona fide intent to use the mark in commerce, additional forms and filing fees will be required at a later time.

Aren't Government trademarks in the public domain?

The major body of U.S. law that governs federal registration of trademarks is 15 U.S.C. §§ 1051 -1129 and 1141. Some states also offer state trademark registration.  In addition to being protected by specific statute, certain Federal government symbols are considered to be trademarks and, as such are not to be used by third parties without permission. While it is true that works (such as written works) created by Federal employees are generally not protected by copyright and are in the public domain, the Federal government’s logos, symbols, or trademarks are not in the public domain.

What about fair use?

Although the concept of "fair use" is most often associated with copyright law, in trademark law, "fair use" contemplates use of a trademark name solely to describe the goods offered under such mark, or when a mark is used in its non-trademark, plain English meaning. While some instances of use of a government symbol might qualify as "fair use," each such use must be reviewed, on a case-by-case basis by the OGC, in order to determine whether fair use applies. If fair use does not apply, permission must be sought from or a license must be granted by the mark owner.