Design trademarks

What if I want to trademark my logo or design? You can do that! The process to register a design mark is much the same as applying for a standard character word mark. There are no added fees and generally the approval timeline remains the same. As you might imagine, the more elements you add to a trademark, the more factors you’ll need to consider in registration. So, in order to ensure that you do not run into unforeseen snags or charges later on, you will need to have a few more ducks in a row before submitting an application:

  • Is this the final version of the design? If not, you’ll want to wait to file the exact mark you ultimately plan to use. Even small changes to a design can nullify your registration.
  • Do you want to apply in color or black and white? The benefit of filing in black and white is that you are protecting the design elements without tying them to specific color schemes. Want to change your logo colors for Halloween? Christmas? Pride? If you filed in black and white, you can do so freely without putting your trademark registration in jeopardy.
  • Are the design elements unique or do they resemble something that already exists? As with any word mark, if a logo – or confusingly similar logo – is already registered in your filing class, you may not be able to successfully garner a registration – or safely use it without one.

If you are trying to decide whether to register a trademark for your business or product as a word or design, consider the following:

  • Once registered, your logo/artwork has trademark protection and can be cited against other future applications with similar design elements
  • Of course, this means that already registered designs with similar elements can be cited against your registration
  • Descriptive terms that might not be allowed on the Principal Register as word marks can appear as part of a design so long as they are disclaimed
  • However, this is not a loophole for using someone else’s previously-registered mark (the same or similar names can still be cited as grounds for refusal)
  • You must continue using the design EXACTLY as submitted to maintain your registration and protections
  • This includes not making any changes to your design between filing an Intent to Use application and filing the Statement of Use, as well as not changing your design once it registers
  • If you alter your logo in the market (say, for rebranding purposes), you will need to file a new trademark application in order to protect it
  • Design marks can be filed in color or black and white. While filing in color does protect those as elements of the design, they also cannot be changed once filed.

If you are thinking of applying for a design trademark, it is, of course, important to ensure that you have the appropriate rights to the art itself, and you must have a high-resolution, appropriately-sized JPEG for submission to the UPSTO.

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