T.M.E.P. § 803.01
Who May Apply

Executive summary:

This document contains one section of the Trademark Manual of Examining Procedure (the "TMEP"), Fourth Edition (April 2005). This page was last updated in June 2007. You may return to one either the section index, or to the key word index. If you wish to search the TMEP, simply use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the TMEP in the pop-up list.

For more information on trademark law, please see the Trademark Section of BitLaw.

Previous Section (§803) | Next Section (§803.02)

803.01 Who May Apply

An application to register a mark must be filed by the owner of the mark or, in the case of an intent-to-use application under 15 U.S.C. 1051(b), by the person who is entitled to use the mark in commerce. Normally the owner of a mark is the person who applies the mark to goods that he or she produces, or uses the mark in the sale or advertising of services that he or she performs. See TMEP §§1201 et seq. regarding ownership, and TMEP §§501 and 502 et seq. regarding changes of ownership.

If an applicant is not the owner of (or entitled to use) the mark at the time the application is filed, the application is void and cannot be amended to specify the correct party as the applicant, because the applicant did not have a right that could be assigned. 37 C.F.R. 2.71(d). See TMEP §803.06 and cases cited therein.

Applicants may be natural persons or juristic persons. Juristic persons include corporations, partnerships, joint ventures, unions, associations and other organizations capable of suing and being sued in a court of law. 15 U.S.C. 1127. An operating division, or the like, that is merely an organizational unit of a company and not a legal entity that can sue and be sued, may not own or apply to register a mark. See TMEP §1201.02(d).

Nations, states, municipalities, and other related types of bodies operating with governmental authorization may apply to register marks that they own. See NASA v. Record Chemical Co. Inc., 185 USPQ 563 (TTAB 1975); In re U.S. Department of the Interior, 142 USPQ 506 (TTAB 1964).

The question of whether an application can be filed in the name of a minor depends on state law. If the minor can validly enter into binding legal obligations in the state in which he or she is domiciled, then the application may be filed in the name of the minor. Otherwise, the application should be filed in the name of a parent or legal guardian, clearly setting forth their status as a parent or legal guardian. If the record indicates that an application has been filed in the name of a minor, the examining attorney should inquire as to whether the person can validly enter into binding legal obligations under the law of the state in which he or she is domiciled, and require correction of the entity statement, if necessary.

See TMEP §Chapter 500 regarding assignments, name changes, and issuance of a registration in the name of an assignee or in an applicant's new name.

See also TMEP §§1002 et seq. regarding eligibility to file an application under §44 of the Trademark Act, 15 U.S.C. 1126, and TMEP §1901 regarding eligibility to file a request for an extension of protection of an international registration to the United States under §66(a) of the Act, 15 U.S.C. 1141f(a).