You're undoubtedly familiar with the right to a speedy trial. But is there a right to a speedy trademark? Hardly. In fact, it can take anywhere from a few months to several years for a trademark application to be approved by the United States Patent and Trademark Office (USPTO).
Here are some insights into that process and a few tips to help it go smoothly.
File right away
Once you come up with that perfect name, slogan, logo, or phrase for your product or service, don't delay in filing an application with the USPTO. Since trademark applications are reviewed on a first-come, first-served basis, the sooner your trademark application is received, reviewed, and approved, the sooner your trademark becomes legally protected from use by your competitors.
Get pending trademark protection
Although the entire trademark registration process may take more than a year to complete, you attain trademark protection from the moment your application is filed. Assuming you are eventually granted a federal trademark registration, your rights will be retroactive to the initial filing date.
As your application works its way through USPTO, don't expect a quick turnaround. Although the process of conducting a trademark search and filing an application can be completed in just a few days (and is relatively inexpensive), the review and final trademark approval process take time.
After you file your trademark application
After you complete a trademark name search and submit your application, three steps remain in the process.
1. Your application is reviewed by a USPTO examining attorney
An examining attorney will be assigned by USPTO to painstakingly review your trademark application. Because USPTO receives hundreds of thousands of trademark applications each year—and has only a limited number of examining attorneys—on average, it will take four months before the review begins on your application.
You may be required to answer questions from the examining attorney before you obtain final approval and trademark registration. This often slows the process.
If the examining attorney decides that a trademark should not be registered, an official letter—called an "office action letter"—will be issued by USPTO. In the letter, the examining attorney will explain the reasons for denial of your trademark.
For instance, the proposed trademark may be refused because the proposed mark is too similar to an existing registered trademark. Alternatively, the application may not adequately describe or identify your company's goods or services. All problems identified in the letter must be resolved before the review and approval process may continue.
You have six months to respond to an office action and attempt to fix any issues. After that, the application will be considered abandoned, and the process will end there.
2. Your trademark is published in The Trademark Official Gazette
After the examining attorney is satisfied that your trademark has overcome any objections, your trademark will be approved for publication in The Trademark Official Gazette, USPTO's weekly publication.
Within 30 days of publication date, any party who believes that harm or prejudice will result from the approval of the trademark may file an opposition or request to extend the time within which to file an opposition.
If an opposition is filed, a proceeding will be convened to either validate or dismiss the objections. On the other hand, if no opposition is filed or if the opposition is overruled, the application proceeds to the next step.
3. Your trademark is issued
In the third and final step, USPTO will issue you either (i) a registration certificate if your trademark was already being used in commerce when your mark is approved, or (ii) a notice of allowance (NOA), if your trademark was the result of an intent-to-use filing.
You will receive a registration certificate approximately four months after the publication of the trademark. The NOA also takes about four months but requires several extra steps.
The NOA shows that your trademark has survived the opposition period following publication in the Official Gazette, and provides that a trademark has been allowed for registration; however, it does not mean that the trademark has been fully and finally registered.
If you filed your trademark on the basis of intent to use, you must still file a statement of use to establish that you are using it to sell goods and/or services. A statement of use is an official form used by USPTO that can only be filed once a business has started to use a trademark. This rule prevents parties from registering a trademark merely to tie it up; the trademark must be used in commerce. To prove a trademark's use in commerce, you can display it on products, packaging, or other marketing tools.
While there are ways to expedite the trademark registration process, you should count on about 10-18 months to have your trademark approved.