Two Critical Questions Before Filing Your US Trademark
The Two Critical Questions Before Filing Your US Trademark
Maximize your chances of success and avoid costly mistakes
Before you invest time and money filing for a US federal trademark, understanding two fundamental questions can make the difference between approval and rejection. These questions form the foundation of every successful trademark application:
1Is Your Trademark Inherently Distinctive?
According to USPTO standards, your mark must be distinctive enough to serve as a unique source identifier for your goods or services.
The USPTO's Five-Factor Test
USPTO examiners evaluate every trademark application using five critical criteria. Your mark must not fail these tests to be considered inherently distinctive upon initial examination:
Is it too descriptive of your product?
Is it a common term for your industry?
Is it primarily a last name?
Does it indicate a place?
Can it actually identify your brand?
💡 Real-World Example: Nike
The trademark "Nike" passes all five criteria with flying colors. It's not descriptive of shoes, not generic, not a surname, not geographic, and clearly functions as a brand identifier. However, passing the distinctiveness test is only half the battle...
2Is Your Trademark Available?
Even if your mark is inherently distinctive, it must be available for registration—meaning no similar marks already exist.
Many people believe that if a Google search doesn't reveal similar names, their trademark must be available. This is dangerously incorrect and leads to countless failed applications, wasted fees, and lost time.
Why Availability Is More Complex Than You Think
Conceptual Similarity Matters: USPTO examiners can reject your mark even if it doesn't sound the same or use the same words as an existing trademark. If they believe the meaning conveyed by your mark is similar enough to cause consumer confusion, they will reject it.
Class of Goods Considerations: Your mark might be approved even if a similar mark exists—but only if you're applying in a different class of goods or services. However, if examiners determine those classes are related, they can still reject your application on that basis.
The Reality of Trademark Law
As you can see, trademark law contains numerous nuances and subtle complexities when determining both availability and inherent distinctiveness. Success requires meticulous attention to detail and deep knowledge of the process.
The nature of trademark law itself makes it impossible to be 100% certain of registration approval. However, with proper due diligence and expertise, you can substantially increase your probability of success.
🚀 Introducing the Trademark Risk Screener
Make smarter trademark decisions before you file
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While no attorney or tool can eliminate all risks, the Trademark Risk Screener can potentially save you hundreds of dollars and countless hours of frustration by identifying inherent distinctiveness issues before you file.
Try the Screener Now →Smart trademark protection starts with informed decisions
*This tool analyzes inherent distinctiveness for informational purposes only. It does not check trademark availability or guarantee approval. Estimates are provided to help increase your probability of success.
