TMEP 803.03(a): Individual or Sole Proprietorship

This is the October 2015 Edition of the TMEP

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803.03(a)    Individual or Sole Proprietorship

Individual. For an individual, it is not necessary to specify “individual,” but it is acceptable to do so. The applicant may state that he or she is doing business under a specified assumed company name. TMEP §803.02(a).

In an application for international registration, if the applicant is a natural person, he or she must indicate his or her name and may include the country of which he or she is a national. Common Regulations Under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to That Agreement (“Common Regs.”), Rules 9(4)(a)(i), 9(4)(b)(i) (2013). The international application does not require this information, but when the information is included, the IB will forward the nationality of the applicant to the USPTO. In a §66(a) application, if the “Nationality of Applicant” field appears in the Trademark Image Capture and Retrieval System (“TICRS”) (which is available to the public through the Trademark Status and Document Retrieval (“TSDR”) portal on the USPTO website at http://tsdr.uspto.gov/ ), this means that the applicant is an individual rather than a juristic entity, and that applicant’s citizenship is the country corresponding to the two-letter code set forth in this field. The list of country codes appears in the MM2 International Registration application form at http://www.wipo.int/export/sites/www/madrid/en/forms/docs/form_mm2.pdf. A separate statement that applicant is an individual will not appear in TICRS, and the “Legal Nature” and "Legal Nature: Place Incorporated" fields will state “Not Provided.”

If the “Nationality of Applicant” field appears in TICRS, the examining attorney may enter the relevant information into the Trademark database, or ask the LIE to enter it. No inquiry as to the applicant’s entity or citizenship is necessary. If the “Nationality of Applicant” field does not appear in TICRS, the examining attorney must require that the applicant indicate its entity and citizenship. Examining attorneys cannot rely on the “Entitlement Nationality,” “Entitlement Establishment,” or “Entitlement Domiciled” fields for the applicant’s citizenship because these fields merely indicate the basis for the applicant’s entitlement to file an application through the Madrid system, not the national citizenship of the individual applicant.

Sole Proprietorship. An applicant may identify itself as a sole proprietorship. If an applicant does so, the applicant must also indicate the state where the sole proprietorship is organized, in addition to the name and national citizenship of the sole proprietor.

If the application specifically identifies the applicant as a sole proprietorship and indicates the state of organization of the sole proprietorship and the name and citizenship of the sole proprietor, the USPTO will accept the characterization of the entity. On the other hand, if the application refers to a sole proprietorship but lacks some of the necessary information or is ambiguous as to whether the applicant should be identified as a sole proprietorship or as an individual, the examining attorney must require appropriate clarification of the entity type.

A sole proprietorship generally means a business which has only one owner. Therefore, if an application identifies two persons or two different entities as a “sole proprietorship,” this is an ambiguity that requires clarification of the entity type. Note, however, that in California a husband and wife can be classified as a sole proprietorship.