3 Key Factors That Impact USPTO Filing Fees for Trademark Applications
I often talk with people who are frustrated and confused after trying to figure out how much the USPTO charges for a trademark application. Let’s break it down. There are 3 key factors that will determine your filing fees.
(1) How many different classes are you trying to register your mark in?
When you apply to register a trademark with the USPTO, you’ll have to identify what goods/services you use your mark with (candy, cosmetics, architectural design, etc.). Then you have to put your goods/services into the correct Class. The USPTO has a system for separating out goods and services into 45 different Classes. We actually share this classification system (the Nice Classification System) with many other countries that are parties to the same treaty. Anything you can imagine doing or selling has a proper place within this system. For example, your standard clothing goods (hats, pants, jackets) belong in Class 25. But clothing for a special purpose may belong in a different Class, such as medical gowns in Class 10, clothing for protection against fire in Class 9, or clothing for pets in Class 18. So you'll have to figure out not only how to word your identifications of goods/services so that the USPTO will accept them, but also which Classes those goods/services belong in.
The USPTO will charge a filing fee for each Class that you want to register your mark in. So the critical question isn’t how many different goods or services you want to register your mark with, but how many Classes. You might want to register your mark with 50 different types of clothing that are all in Class 25 and end up paying a filing fee for only 1 Class even though you have 50 different goods listed. On the other hand, you might have a total of only 5 different goods and services and yet have to pay 5 times as much because they are all in different Classes (like hats, sunglasses, purses, jewelry, and retail store services featuring hats, sunglasses, purses, and jewelry).
(2) What form will you be using to file your application: TEAS Plus or TEAS Standard?
Once you figure out how many Classes you’ll be registering your mark in, you’ll need to figure out which form you’ll use. The TEAS Standard form gives you more options and flexibility, but it also costs $100 more per Class than the TEAS Plus form. Often, which form is appropriate comes down to whether you can use straightforward language to explain what goods/services you use your mark with. If you need to get creative with your wording (for example, if you’ve developed a new type of product), then you’ll likely have to use the more expensive TEAS Standard form. Current USPTO fees are $250 per Class for the TEAS Plus form and $350 per Class for the TEAS Standard form.
(3) Are you already using your mark out there in the real-world U.S. marketplace?
There are several different paths to registration on the U.S. register. We call these filing bases, and if we save conversations about the Madrid Protocol and the Paris Convention for another day, we’re left with two options: (1) use and (2) intent to use. If you file under the use basis, you’ll have to show use of your mark in the real-world U.S. marketplace with the goods/services you identified as of the application filing date. If you file under the intent to use basis, this buys you a little extra time before you have to prove that you are actually using the mark. While you can file under the intent to use basis before actual use, you won’t be able to get a registration until you can prove actual use.* The intent to use basis doesn’t get you around this requirement, it just gives you more time to fulfil it.
If you file under the intent to use basis and your application is approved and survives the opposition period, the USPTO will issue a Notice of Allowance or NOA which will let you know it’s time to submit your specimen of use (proof that you are using the mark in the real-world). When you submit your specimen, the USPTO will charge you $100 per Class for that filing. Although you won’t pay this fee on the date that you file your application, I still include it with the filing fees and in the quotes I give my clients because it is a fee you pay to have your application materials reviewed; just as the intent to use basis shifts the due date for your specimen of use, it also shifts the date on which you have to pay for this part of your application materials to be reviewed.
Hopefully that brings some helpful structure and clarity to filing fee calculations.
*Unless you amend your filing basis - a topic for another day.
This information was posted on April 19, 2021 and was accurate as of the date of writing. However, the law changes frequently, and readers should not rely solely on general online information but instead should consult a licensed attorney by asking questions about their specific issues when they need legal advice.