Trademark Registration on the Supplemental Register

Most people are aware of the numerous benefits of owning a trademark registration on the Principal Register of the United States Patent and Trademark Office (USPTO). In fact, trademark owners are urged by trademark attorneys to select distinctive marks in order to be able to, upon use in interstate commerce, be registered there and enjoy numerous presumptions such as validity, ownership, and notice. However, the Supplemental Register also has value, especially when the alternative is out of the question initially.

Before the benefits of being supplementally registered is discussed, it is important to understand that which a supplemental registration does not provide. Marks are often relegated to the Supplemental Register because, at the request of the USPTO examining attorney, the marks are merely descriptive and therefore not a distinctive identifier of the source of the goods or services to which the mark pertains. Such placement does not afford the exclusive right to use the mark in commerce in connection with its identified goods or services. Equally important, it does not serve as prima facie evidence of the validity of the registered mark or of the trademark registrant's ownership of the mark. Finally, it may be an admission that the mark is not inherently distinctive.

While these drawbacks obviously warrant a mark owner's desire to be registered on the Principal Register, a supplemental registration has benefits of its own. In fact, some entities choose to have a brand that tells consumers what it is they are offering (e.g. Pizza Restaurant) as opposed to an inherently distinctive mark (.e.g. Domino's®) that requires effort to create consumer recognition. Such marks are not going to warrant principal placement, although they be supplementally registered. After five years on the Supplemental Register, the mark may qualify for the Principal Register due to it having acquired distinctiveness. It is worth noting that both allow the owner to use the registered trademark ® symbol, sue in federal court, and take advantage of certain international treaties.

Thus, any registration with the USPTO is better than having no trademark registration at all. While ultimately the Principal Register provides the most benefits and best protection, the Supplemental Register should be considered where an entity prefers what is likely a merely descriptive mark at the outset or has failed to acquire the requisite distinctiveness to be registered on where many deem as the preferred spot.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm focused on complex litigation, intellectual property matters, internet law and trademark prosecution. Speak with a trademark attorney today and learn more about the numerous benefits of owning a trademark registration on the Principal Register of the United States Patent and Trademark Office (USPTO).

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