Trademark Blog

Michigan Trademark Attorney: How Do I Trademark Food Products?

trademark food products

Image by Michal Jarmoluk from Pixabay

Protect Your Food Product with a Federal Trademark Registration

A food product sold in interstate commerce under a unique brand is just as easily registered as a trademark under Federal law as any other product. 

To protect your food product name, logo, or advertising phrase or tag-line, you must do the following:

Retain a Knowledgeable Trademark Registration Attorney

While this suggestion may seem at first self-serving, there is no question that retaining a competent trademark attorney will vastly increase the odds of the remaining steps, below, being completed successfully. 

A good trademark lawyer will conduct a proper and thorough pre-application clearance search, analyze the results, and provide you an opinion as to whether your risk-level in proceeding with the application is low, medium, or high. 

A good trademark attorney will ensure the application is properly drafted and filed. 

A good trademark lawyer will argue on your behalf with the USPTO and with third parties opposing your registration when such obstacles pop up post-filing. 

Retaining a trademark attorney will maximize your odds of success. Filing an application on a "DIY" basis or using a cut-rate online form-filling service will not help you once obstacles arise. 

You will save money  in the long run and decrease your stress-level by retaining a trademark attorney up-front. 

Ensure That Your Name or Logo Uniquely Identifies Your Food Product

It is vital that your brand uniquely identify you to consumers as the source of the product or service which it is intended to represent. A name or logo design or tag-line cannot infringe upon another similar name, nor can it be merely descriptive of what is being sold and where. 

A good trademark attorney will help you identify problems with your brand before you invest capital in developing or marketing it and certainly before filing an application to register it as a trademark. 

Conduct a Proper Trademark Clearance Search

Once your brand is solidified, the next step is to properly ensure that you aren't infringing on anyone else's registered trademark or attempting to register a "weak" mark because someone else has been using it in commerce longer, regardless of whether it has been registered with the USPTO or not. 

What do I mean by that? 

The US is a "first to use" jurisdiction when it comes to trademark registration, not a "first to file" jurisdiction. Therefore, although someone else may not have registered a trademark before you, if they have been using it longer, it can pose a problem to your registration. 

These are issues you want to root out before filing an application with the USPTO, and that is why a proper clearance search is necessary. 

A layman's Google search and/or search of the USPTO's TESS database will not fully search all sources of potential conflict, including state trademark databases, social media, business registrations, and other hits. 

A good trademark attorney will utilize a robust, professional search service which will scour all of these sources of information and more to determine whether or not your mark is truly "clear." 

The Hilla Law Firm, PLLC provides this service for our clients, parses hundreds of pages of search report results, and drafts a detailed Opinion Letter detailing the "problem hits," explaining the problems with each, and ultimately providing a "low," "medium," or "high" risk assessment so that the client can decide whether to proceed with an application or not on an educated basis. 

Draft and File Your Trademark Registration Application

Once you decide to proceed with your application after receiving your attorney's Opinion, the next step is to draft and file with the USPTO your application for trademark registration. 

An application can be filed either as an "in-use" application or as an "intent-to-use" application, depending upon whether you are currently marketing your product or service in interstate commerce or are still in the planning stages. 

Your attorney will help you decide which is better to file, the timing of the filing, and will discuss the requirements of the application, such as the need to include a "specimen" with an "in-use" application. 

Your attorney will draft your application, provide it to you for your pre-filing review and signature, and then file it with your approval electronically with the USPTO. 

Work Through Any Office Action Refusals with your Attorney

3 months after the application is filed, the USPTO will assign an attorney-examiner to review it. The examiner may approve the application and pass it through to the publication period (see below). 

OR the examiner may issue 1 or more "refusals," otherwise known as "office actions." 

Depending on the nature of the office action, it may be an easy application fix—or it may be something requiring a substantive response drafted by an attorney that will be very much like any other pleading filed in Federal Court. 

Dealing with office actions, whether "administrative" or "substantive," is not something you want to undertake without a trademark attorney working for you. 

If the issues are not resolved favorably, the USPTO classifies the application as "abandoned," and the applicant has only a few options for proceeding at this point. 

If they are resolved favorably, the application is approved, and it proceeds to the publication period. 

Ride Out the Publication Period

Once your application has been approved, it will enter a 30-day "publication period" in which third party registrants and mark owners may view it and opt to oppose its final registration. 

If a third party files what is called an "opposition," you are, again, in the realm of Federal litigation and negotiation.

As with office actions, this is not a place you want to be without the assistance of a trademark attorney

Receive Your Certificate of Registration

Once your application passes through the publication period, it becomes a registered trademark and a certificate of registration is mailed to your attorney of record—if the application was an "in-use" application.

In that case, you need only ensure that you properly maintain the registration for the life of its use in commerce. 

Read more about trademark maintenance, here. 

If the application was an "intent-to-use" application, instead of the issuance of a certificate of registration, you are notified of the need to file a "Statement of Use" with an additional fee. 

The Statement of Use is evidence that the mark is now being used in interstate commerce. There is a 6-month deadline for the filing of the Statement of Use. If not met, the application is deemed Abandoned.

This deadline may be extended a number of times—but not infinitely. 

Detroit Trademark Attorneys: Protect Your Food Product Brand

The bottom line with regard to trademark registration for food products is that there is no essential difference between a food product and any other product sold in interstate commerce.

A food product is perfectly eligible for trademark registration, so long as it meets the general criteria and survives the application process described above. 

If you are planning to market or have already begun marketing a food product across state lines (including via Amazon or any other online storefront platform), The Hilla Law Firm represents food product manufacturers throughout the US for trademark matters. 

To schedule a free, initial consultation, complete the Contact Form on this site or please contact us to discuss your matter or click here to directly schedule your initial trademark consultation into our calendaring system.

Can I Register a Trademark for a Flag or Other National Symbol?

A national or state flag or other national insignia may not be registered, but other elements including so-called "national symbols" may be unless they falsely suggest a connection with the nation or state. Contact The Hilla Law Firm, PLLC to discuss your trademark registration at (734) 743-1489. Affordable fees!
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