Trademark
What trademark protection actually covers, how to register it, and why the $350 you spend at the USPTO is the cheapest insurance a brand builder will ever buy.
A trademark is a legal protection for the words, names, logos, slogans, and other identifiers that distinguish your brand from everyone else’s. Once registered with the USPTO, it gives you exclusive, federally recognized rights to use that mark in commerce nationwide and the legal standing to stop anyone who tries to copy it. Filing costs $350 per product category. The average trademark infringement lawsuit costs $120,000 to $750,000. That math explains why registering early is not optional for any serious brand.
Nearly 48% of all trademark applications get rejected, and the most common reason is that someone else already has something too similar. A clearance search before you name your brand, launch a product line, or build out packaging costs a fraction of what it costs to rebrand after an infringement claim. Do it before you fall in love with the name.
What You Can Actually Trademark
Word marks and logos
The two most common filings are word marks and design marks. A word mark protects the words themselves regardless of font or styling, making it broader and generally more valuable than a logo. A design mark protects a specific visual presentation. Owning both gives you the fullest coverage: the Spanx name as a word mark, plus the Spanx logo as a separate design mark registration.
Trade dress
Trade dress protects the overall visual appearance of a product, its packaging, or a retail environment when that appearance identifies your brand as the source. Christian Louboutin’s red lacquered outsole is the most famous example. Trademarked in 2008, the mark protects the red sole specifically when it contrasts with the upper portion of the shoe. A 2012 federal appeals court confirmed it was valid because consumers had genuinely come to associate that visual element with one brand.
Beauty packaging can be protected from multiple directions. The graphic design on your palette or box is covered by copyright the moment it’s created, separate from any trade dress registration. When Charlotte Tilbury sued Aldi in 2019 for copying her Filmstar Bronze & Glow palette, the case was decided on copyright grounds, not trademark. Two different tools, often working together.
Color trademarks
Tiffany Blue has been a registered trademark since 1998. The specific shade is a custom Pantone color created exclusively for Tiffany & Co. and not publicly available for purchase, which means the color itself functions as a brand signal with no name or logo required. This is secondary meaning at its most refined: a single shade that consumers worldwide associate with one company.
For most founders, trademarking a color is effectively out of reach. The legal threshold requires proving that consumers in your product category see that color and immediately associate it with your brand alone, not just that you use it consistently. That takes years of exclusive, market-saturating use plus consumer survey data to demonstrate, which is why even Louboutin had to fight to a federal appeals court and still only won protection for a red sole that contrasts with the upper.
How Registration Works
The USPTO receives over 730,000 trademark applications per year. From filing to registration, the current timeline runs 12 to 18 months for a clean application. Applications that receive examiner objections can take longer. This section is the overview. For the step-by-step versions, see how to search a trademark and how to register a trademark yourself.
Do the clearance search first
Search the trademark database before you do anything else with a name. It’s free, takes about 10 minutes, and can save you from building an entire brand identity around something you can’t legally own. For the full walkthrough, see how to search a trademark.
- Go to TESS, the USPTO’s Trademark Electronic Search System.
- Type your proposed name in the search bar. The default search type is Wordmark, which searches the text of registered marks exactly as written. Start here.
- Filter to Live marks only. Results include both live and dead (abandoned or cancelled) registrations. Dead marks don’t block you. Use the filter to cut them out.
- Filter to your relevant class. Beauty brands live primarily in Class 3. Selecting your class shows you the marks you’re actually competing with.
- Search phonetic variations. TESS matches text, not sound. “Luminara” won’t surface “Luminaire” or “Luminary.” Run separate searches for anything that sounds like your name, even if it’s spelled differently.
- Check the class carefully on anything that looks close. A similar name in Class 3 (beauty) or Class 35 (retail services) is a direct conflict. A similar name in Class 12 (vehicles) almost certainly isn’t.
If you find anything that looks close, stop before you invest further in the name. Run it by a trademark attorney before filing.
What makes a mark “too similar”
The legal standard is “likelihood of confusion”: whether an ordinary consumer might think two products come from the same source. This is what USPTO examiners apply when they review your application, and it’s the reason nearly half of all applications get rejected.
Several factors go into it: how similar the marks look and sound, how related the products are, whether they appear in the same sales channels, and whether either mark is well-known enough that consumers would recognize it on sight. If the marks are very similar, the products don’t need to be closely related for confusion to apply. “Luxe” for skincare and “Luxe” for supplements could conflict because the marks are identical and the products overlap at the pharmacy. In 2023, the USPTO’s appeals board affirmed 85% of likelihood-of-confusion refusals that were challenged. This isn’t a standard they apply loosely.
Filing fees and the class system
Trademarks are registered in specific categories under the 45-class Nice Classification system. The base filing fee is $350 per class as of January 2025, and each additional class is another $350. Vague or poorly written goods descriptions can trigger surcharges of $100 to $200 per class, so specificity matters at filing.
For most women building product brands, the relevant classes are:
- Class 3: Cosmetics, skincare, perfume, soap, hair care. The primary class for beauty brands.
- Class 25: Clothing, footwear, headgear. Core for fashion and apparel.
- Class 35: Retail store services, including online retail. This covers the act of selling, not just the product itself.
- Class 5: Supplements and vitamins, if your product makes health-adjacent claims.
A beauty brand selling DTC needs both Class 3 and Class 35. Class 3 protects the products. Class 35 protects the e-commerce business. Filing in only one leaves you exposed.
If your name comes back clean and you want to file without a lawyer, our guide to registering a trademark yourself walks through the Trademark Center, choosing your class, and the specimen step in order.
After you file
A USPTO examining attorney reviews the application roughly 7 to 8 months after filing. If they find problems, they issue an “office action” with objections you must respond to within three months. After examination clears, approved marks are published for a 30-day opposition period, during which anyone who believes they’d be harmed by your registration can file a challenge. If nobody opposes it, the registration issues.
TM, ®, and Why the Difference Matters
The TM symbol signals you’re claiming trademark rights. You can use it immediately, whether or not you’ve filed with the USPTO, because it reflects common law rights that arise from actual use in commerce. Common law protection exists wherever you’ve been using the mark, but only there. It’s geographically limited, carries no federal presumptions, and is expensive to defend because you have to prove everything from scratch.
The ® symbol is a federal statement that your trademark is registered with the USPTO. You cannot legally use it until the USPTO grants registration. Using it before then is unlawful. In some countries, including India, Japan, and the UK, falsely indicating a mark is registered can be a criminal offense with fines or imprisonment.
The practical consequence: if you have a registered mark and don’t consistently display ®, you can’t recover the infringer’s profits or damages in a lawsuit unless you can prove they had actual notice of your registration. The symbol isn’t formality. It’s what makes the registration enforceable.
What that looks like in practice: a skincare brand gets its trademark registered, never puts ® on the packaging or website, and two years later finds a competitor selling products under the same name. They sue and win on infringement. But because they never displayed ®, the court can’t award the $180,000 in profits the infringer made using their mark. They get an injunction forcing the infringer to stop and maybe court costs. The infringer keeps the money. If they’d been using ® the whole time, that $180,000 would be recoverable, plus potentially attorney fees. The lesson is simple: once you have the registration, put ® everywhere the mark appears. Packaging, website, social bios, email footers. Every time.
What Registration Actually Gets You
Federal registration creates a legal presumption that you own the mark nationwide and have the exclusive right to use it. That shifts the burden to anyone challenging your rights, rather than making you prove everything. After five years of continuous use, you can file for “incontestability” status under Section 15, which eliminates most grounds for challenging the mark’s validity. An incontestable mark is about as close to bulletproof trademark protection as exists.
Without registration, you have common law rights limited to your actual geographic market. Defending them means proving when you started using the mark, in what territory, and for what products. That’s slow, expensive, and uncertain, which is why the average infringement lawsuit runs into the hundreds of thousands before a verdict.
The Kylie Jenner situation is instructive. She filed to trademark “KYLIE” for advertising and endorsement services in 2015. Kylie Minogue, who had been using her first name professionally since 1987, filed an opposition in 2016. Minogue’s attorneys described Jenner in the filings as “a secondary reality television personality.” Minogue withdrew her opposition in early 2017 after a private settlement, but the USPTO ultimately rejected Jenner’s standalone “KYLIE” application anyway on likelihood of confusion grounds. The brand is now Kylie Cosmetics, which is registered. A thorough clearance search in 2015 would have surfaced this problem before Jenner built an entire identity around a name she couldn’t own.
Going International
US trademark registration protects you in the US only. For international coverage, the Madrid Protocol lets you file one application through WIPO designating up to 132 member countries. The base filing fee is 653 CHF (roughly $730) for a black-and-white mark, plus per-country fees that each member sets individually. For a brand wanting coverage in the EU, UK, Canada, and Australia, total costs typically run $2,000 to $5,000 depending on classes. You need an existing US application or registration before you can file internationally under Madrid.
How Long It Lasts
A trademark can last indefinitely, unlike patents (20 years) or copyrights (life of the author plus 70 years), as long as you keep using it and file the required maintenance paperwork. Between years 5 and 6 after registration, file a Declaration of Use proving the mark is still in active commerce. Between years 9 and 10, renew. Then every 10 years after that. Miss a deadline and the registration dies. There is a 6-month grace period with a $100 per class surcharge, but after that you start over.
Frequently Asked Questions
Do I need a lawyer to file a trademark?
No, but the 48% rejection rate is a strong argument for at least a professional clearance search before you file. Attorneys charge $1,000 to $2,000 total for a clean one-class application. A rejected application wastes the $350 filing fee and the 12 months you spent waiting. A successful application with a scope that’s too narrow to be useful wastes considerably more.
What is the difference between trademark, copyright, and patent?
Trademark protects brand identifiers: names, logos, slogans, trade dress. Copyright protects original creative works: writing, photography, design, music. Patent protects inventions and novel processes. They cover different things and are often used together. A beauty brand might trademark its name and logo, copyright its packaging photography, and patent a proprietary formulation.
Can I trademark my own name?
Yes, but only if it functions as a brand identifier, not as a personal name. Kylie Jenner’s attempt to trademark “KYLIE” was rejected because of Kylie Minogue’s established use of the same name. Personal names can be trademarked once they’ve acquired secondary meaning, meaning consumers associate them with a specific brand rather than a person. Sara Blakely is a person. Spanx is a trademark.
What happens if someone infringes my trademark?
Start with a cease-and-desist letter, which puts the infringer on formal notice and creates a legal record. If they don’t comply, you can file a complaint with the USPTO’s Trademark Trial and Appeal Board for opposition or cancellation proceedings, or bring a lawsuit in federal court. Registered trademark owners can pursue statutory damages. Unregistered mark owners must prove actual economic harm, which is significantly harder and more expensive.
What is trade dress?
Trade dress is the overall visual appearance of a product, its packaging, or a retail environment when that appearance functions as a brand identifier. Louboutin’s red sole, Tiffany’s blue box, the shape of a Coca-Cola bottle: none of these are words or logos, but all of them signal a specific source to consumers. Trade dress must be distinctive (consumers must associate it with one brand) and non-functional (it can’t be something protected because it works, only because it signals the brand).
What are the most common reasons a trademark application gets rejected?
Likelihood of confusion with an existing registered mark is the top reason, accounting for the majority of rejections. After that: the mark is too generic or merely descriptive of the product, the specimen doesn’t show the mark being used in actual commerce, or the identification of goods and services is too vague. A proper clearance search and a well-prepared application eliminate most of these before filing.
Sources
- USPTO, “Summary of 2025 Trademark Fee Changes,” January 2025. Filing fees and surcharge structure effective January 18, 2025.
- USPTO, “How Long Does It Take to Register?,” 2024. Timeline and first action pendency data.
- PatentPC, “Analyzing USPTO Trademark Statistics,” 2024. Application volume, approval rates, and refusal reasons.
- Adibi IP, “Average Cost of Trademark Infringement Lawsuit,” 2024. Litigation cost ranges.
- The Fashion Law, “On the Heels of the Kylie v. Kylie Trademark Battle,” 2017. Kylie Jenner vs. Kylie Minogue dispute timeline and outcome.
- IPKat, “Copyright Protection Granted to Charlotte Tilbury Makeup Powder Case,” August 2019. Tilbury v. Aldi outcome and details.
- Naik Naik, “Christian Louboutin’s Red Sole Trademark Journey,” July 2024. Red sole trademark background and the 2012 federal ruling.
- SecureYourTrademark, “The Tiffany Blue Trademark,” 2024. Color trademark registration and Pantone history.
- WIPO, “Madrid System Schedule of Fees,” 2024. International trademark filing fees and country designations.
- Gerben IP, “Trademark Symbols ®, ™, ℠,” 2024. Symbol usage rules and legal consequences of misuse.
- USPTO, “Keeping Your Registration Alive,” 2024. Maintenance deadlines and renewal requirements.
- Malloy & Malloy, “Appellate Reversals of §2(d) Refusals,” 2023. TTAB affirmation rate for likelihood of confusion refusals.