Yes, in a limited way. In the United States, you gain trademark rights in a name at no cost by using it as the brand on goods you sell or services you provide. Federal registration is what costs money: the USPTO charges $350 per class of goods or services to file an application, and a registration protects the name far beyond the places you already do business.
What Can You Do Without Paying a Trademark Filing Fee?
People use “free trademark” to mean four different things, and only one of them carries a government fee.
| Step | Cost | What you get |
|---|---|---|
| Using the name in commerce | No filing fee | Common-law rights, limited to where and how you use the name |
| Searching the USPTO database | Free | A first look at registered marks and pending applications |
| Placing TM or SM next to the name | Free | Public notice that you claim the name |
| Federal registration | $350 per class, plus any added charges | Examination by the USPTO and nationwide rights if it registers |
Of the four, only use and registration create rights in the name.
How Do Common-Law Rights in a Name Arise?
A name becomes a trademark when customers see it and connect it with the source of what they buy. The federal Lanham Act describes use in commerce as genuine use in the ordinary course of trade, as opposed to token activity meant to reserve a name. For goods, the mark appears on the products, their labels, or their displays, and the products are sold or shipped. For services, the mark appears in selling or advertising services you actually provide.
Until that happens, a name on the drawing board has no protection. A generic term, such as “Coffee Shop” for a coffee shop, names the product itself, and years of use will not turn it into one company’s property.
When I review a new name, the first thing I ask is when and where the owner began selling under it, since that date anchors any common-law claim. Keep dated records from the first sale: photos of labeled products, invoices, early ads, and screenshots of your website showing the name.
What Protection Do You Give Up Without Federal Registration?
Common-law rights usually reach only the areas where you actually use the name. If another business adopts the same name three states away before you arrive there, your earlier start may not stop it in that market. Proving your rights also falls to you, through your own evidence of when you started and where customers know the brand.
A website reaches customers in every state, but selling online does not by itself give you rights in every state. My guide to establishing common-law trademark rights explains how courts look at territory and evidence in more detail.
A federal registration gives you rights across the country, plus legal presumptions about ownership that you would otherwise have to prove yourself. It still leaves room for a business that used the name first in its own area, and the best-known example is a burger restaurant in central Illinois.
The Seventh Circuit decided Burger King of Florida, Inc. v. Hoots on November 25, 1968. Gene and Betty Hoots opened a Burger King restaurant in Mattoon, Illinois, in 1957 and registered the name under Illinois law in 1959. The Florida chain, founded with a Jacksonville restaurant in 1953, reached Illinois in 1961, the same year it received its federal registration. The court affirmed a split: the chain could use the name everywhere in Illinois except the Hoots’ Mattoon market, which the trial court set as a 20-mile radius around their restaurant, and the Hoots could not use it anywhere else in the state.
Can You Register a Name Yourself, and What Must You Pay?
If you are domiciled in the United States, you can file your own application with the USPTO. Applicants domiciled outside the country must use a U.S.-licensed attorney. Anyone who hires an attorney pays the attorney’s fee on top of the government charges. New applications go through the USPTO’s Trademark Center.
The base fee is $350 per class of goods or services, so the number of classes drives the total. The USPTO’s own example: golf shirts, dress shirts, and T-shirts fall in one class, for a $350 fee. Add custom T-shirt printing services and the application covers two classes, for $700.
That $350 figure assumes the application meets the base requirements. Leaving out required information adds $100 per class. Writing your own description of goods or services instead of choosing wording from the USPTO’s ID Manual adds $200 per class, plus $200 more for each additional 1,000 characters past the first 1,000. When I prepare an application, most of the work goes into choosing the classes and the ID Manual wording, since those two choices set the fee.
Filing before you start using the name, on an intent-to-use basis, adds later charges: $150 per class when you prove use, and $125 per class for each extension if you need more time. The USPTO generally keeps its fees even when an examining attorney refuses the application. A registration also costs money to maintain, and my full breakdown of the cost to trademark a name covers those later fees along with attorney pricing.
Where Can You Find Free Trademark Help?
Your own search costs nothing: the USPTO’s search system shows registered marks and pending applications, and the agency recommends looking past its own records for businesses that use a name without registering it. Search for similar spellings and sounds on related goods or services as well as exact matches, then check state trademark records, business-name filings, and the web.
Free legal help is available through law school clinics, where participating schools provide pro bono trademark services to applicants they accept. The USPTO’s directory of participating law school clinics lists each school, its services, and the area it covers. Baylor, for example, handles patents and trademarks for applicants anywhere in the United States. Each clinic sets its own eligibility rules and decides which applicants to take.
The USPTO’s pro bono rules treat required filing fees as separate from the free legal work, so a clinic’s help can still leave you paying $350 per class. If a clinic accepts you, ask whether it or a sponsor will pay the filing charges.
Questions About Protecting a Name for Free
Copyright, business filings, and the ® symbol each come up when people look for a free way to protect a name.
Can I Copyright a Name for Free?
No. Copyright does not protect names, titles, slogans, or short phrases, so copyright offers no free route to owning a business or product name. A name used as a brand falls under trademark law. A logo can carry its own copyright as artwork, but the name inside it still depends on trademark rights.
Does Registering an LLC or Domain Protect the Name?
Forming an LLC or filing a DBA gives your business a legal name with the state, and registering a domain gives you a web address. Neither one creates trademark rights by itself. An LLC name can become a trademark once customers see it identifying your goods or services.
Can I Use ® While My Application Is Pending?
No. The ® symbol is reserved for federally registered marks, and only on the goods or services the registration lists. While your application is pending, or if you never file, use TM for goods or SM for services.
Deciding Whether to Pay for Registration
A name you use in real sales, checked with a careful search, earns rights at no cost, and those rights end at the edge of your market. If the business will sell online or open in new states, registration protects the name in markets you have not reached yet.
Contact my office and I will review the name, the search results, and the classes it needs before you decide what to file.
