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Title: Types of Trademark Applications-USA
2. Types of Trademark Applications-USA

A trademark or service mark may be registered with the United States Patent and Trademark Office on either the Principal or Supplement Registers. The Principal Register is the register with which most people are familiar. It is the Principal Register that grants the benefits described above to registered marks. Three methods exist by which an applicant may apply for federal registration on the Principal Register.

First, an applicant who has already commenced using a mark in commerce may file an application based on that use (a "use" application). For the purpose of obtaining federal registration, commerce means all commerce that may lawfully be regulated by the U.S. Congress, for example, interstate commerce or commerce between the U.S. and another country. The use in commerce must be a bona fide use in the ordinary course of trade, and not made merely to reserve a right in a mark. Use of a mark in purely local commerce within a state does not qualify as "use in commerce."

The second method for filing an application for federal registration is filing based upon a bona fide intention to use the mark in commerce (an "intent-to-use" application). If an applicant files based on a bona fide intention to use the mark in commerce, the applicant will have to use the mark in commerce and submit proof that the mark has been used in commerce before the mark will be registered. More details regarding this proof are set forth below.

Finally, under certain international agreements, an applicant from outside the United States may file a trademark application in the United States based on an application or registration in another country.

The Supplemental Register is primarily designed for marks which are descriptive in nature, in that they are capable of distinguishing the applicant's goods or services once secondary meaning is established, but at the present time they do not have secondary meaning. The benefits that apply to Supplemental Registrations are that the mark will appear in trademark searches, and that the registrant is given the right to use the ® symbol in connection with the mark. In addition, having a mark registered on the Supplemental register will assist in achieving registration of the mark in certain foreign countries. Finally, Supplement Registrations can be used to help prove exclusive use of a mark for a five year period, which is one of the ways in which secondary meaning may be proved to the U.S.P.T.O. An application for Supplemental Registration cannot be based upon an intent to use the mark--only use based applications can be made for Supplemental Registrations.


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