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Trademark Registration for Cosmetics Brands & Products: Be Beautiful and Unique!
Trademark registration for a cosmetic brand or product must meet all of the requirements of any other product.
The proposed business name, product name, logo, or advertising phrase, slogan, or tag-line must uniquely identify the source of the product to consumers purchasing it in interstate commerce.
The cosmetic or brand name cannot merely describe the product itself.
The cosmetic or brand name cannot be likely to confuse consumers as to who has manufactured and is selling it.
Note that this article will not address labeling or other requirements that may arise from FDA or other governmental rule or regulation.
Trademark Registration for Cosmetics: Branding Best Practices
The first trademark registration requirement for a cosmetic product name or brand is, naturally, that it be unique.
Obviously, you don’t want to use the same name someone else has already used. Beyond that, there is a spectrum of distinctiveness that the US Patent and Trademark Office (USPTO) will view your proposed mark upon in determining whether or not your application for trademark registration should be approved.
The easiest sort of mark to have approved is what is known as a fanciful mark.
A fanciful mark is a word that has been invented solely for use as a trademark. It does not exist in language usage outside of the trademark context.
Often cited examples include “Kodak” and “Exxon.”
The next easiest sort of mark to register as a trademark is an arbitrary mark.
This is a word that has nothing to do with the product or serve it is representing in trade but is “arbitrarily” identifying it to consumers. “Google” is an example of an arbitrary mark.
Next on the spectrum of distinctiveness is the suggestive mark.
This is a word or term that simply suggests a quality, characteristic, or attribute of the product but which still requires imagination to describe that quality, characteristic or attribute as it does not directly describe it.
A merely descriptive word or term is just what it sounds like. A proposed trademark that just says what it is and/or where it’s sold.
For example, something like “Detroit Hammer Company” would make for a poor trademark.
Finally, last on the spectrum are generic marks.
These are words or terms that essentially identify the category of goods or services to which the product belongs. “Clothing,” for example.
Merely descriptive and generic marks are not registrable as trademarks.
Thus, choosing the right company, product, or brand name from the outset is crucial to the success of your Federal trademark registration application.
Trademark Registration for Cosmetic Products & Brands: Pre-Application Clearance Search
Once you have chosen a trademark registrable name or logo for your cosmetic product or brand, the next step is to retain an experienced trademark attorney to assist you.
The first reason is that you need an experienced trademark attorney to run a proper pre-application trademark clearance search for you.
A Google search and a search of the USPTO TESS trademark database are insufficient search processes. This “knockout search” may land you a direct hit if one exists—but it will not root out the possibly dozens of “too close for comfort” results that an experienced trademark lawyer would locate.
Additionally, a proper clearance search will scour not only the Federal trademark database but the databases of all 50 states, domain names globally, business registrations, social media—everything.
Why is this important to do right?
For one, to save you the time and expense of filing a trademark application doomed to failure.
More essentially, however, it is because a company need not have filed a Federal trademark application or obtained Federal trademark registration to have the superior right to use a cosmetic name, brand, or logo.
This is because the US is a “first to use” jurisdiction, not a “first to file” jurisdiction.
If there is a cosmetic company 9 states away from you that has been in business since 1901 without ever filing a trademark application, you want to know that before investing hundreds or thousands of dollars into using your confusingly similar cosmetic brand.
That (hypothetical) company was (surely) the first to use that cosmetic name or logo or brand, and they would have the right to have your registration canceled, even if you succeeded in registering yours.
That is not the protection you want from a Federal trademark registration for your cosmetic product or brand.
Trademark Registration for Cosmetic Products & Brands: Application Process
Once your trademark attorney has completed your clearance search with hopefully positive results, the next step is to draft and file your application for registration of your cosmetic trademark with the USPTO.
Your attorney will draft your trademark registration application free of errors, with an accurate description of your cosmetic product or business, minimizing the risk that you will receive pointless Office Action refusals.
Your attorney will ensure you have a proper specimen proving your use in interstate commerce of your cosmetic product name, brand, or logo.
Your attorney will guide you through the year-long process of having a trademark application approved and the trademark registered, receiving electronic communications instantaneously from the USPTO.
Only a US-licensed trademark attorney is empowered to appear before the USPTO and file Office Action responses and other pleadings. Should you receive such a Refusal, your attorney will work to have a Response filed well before the 6-month deadline.
Should a 3rd party trademark owner oppose your application, your trademark attorney will likewise be on hand and quickly able to respond, negotiate, and, if necessary, litigate for you.
Cosmetics Product Trademark Registration: The Bottom Line
The bottom line is that with regard to trademark protection of your cosmetic product or brand, it is worth your while to obtain competent assistance from a trademark attorney
Attorney John Hilla is not just an trademark lawyer but a musician, a singer-songwriter and the former bassist with multiple Midwest post-punk bands over the past 30 years.
We are located in the Motor City, but our trademark practice is national. We represent clients for trademark matters anywhere in the United States and beyond.
Contact Us at (734) 743-1489 or complete the Consultation Request Form to the right of this page to schedule an initial consultation appointment to discuss your trademark needs.