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Most people understand the basics of a trademark – it’s a symbol or other defining mark that identifies a product or service as coming from a particular person, group, or company. In the United States, once a mark is used legitimately, the user has a right to it. But they can further protect their intellectual property right by registering the mark with the USPTO. And this is where everything gets a bit murky.
Trademarks are actually divided into classes based on the International Trademark Classification system as outlined by the Nice Agreement, which went into effect in the United States back on September 1st 1973. Currently there are 45 different classes – classes 1 through 34 are reserved for goods, 35 through 45 for services. And when you register a mark, you have to designate which class, or in some cases classes, you are filing under. However, 44% of all marks, according to data from 2013, are filed under five main classes.
This was the most popular classification in 2013, largely due to the broad definition of electrical apparatuses. For example most computer software would be registered under class 9, and there is a very wide range for types of software. Along with it, items like DVRs, media players, computers, and even calculators also qualify. Just note that not all electric items are class 9 – household utilities, machines, and appliances all have their own class.
Though popular, class 25 is fairly straightforward. Clothing, footwear, and headwear are all lumped under class 25. Effectively, if the mark is attached to something you wear, you likely should file it under class 25. The wearing of the item the mark distinguishes, though, is important as products like bags, linens, luggage, or yarn are not worn, and, therefore, don’t qualify as clothing.
Class 35 is the most popular international classification, according to the WIPO, and the second most popular US class. Like Class 9, this is a very broad classification that’s only grown with the advent of the internet. It mainly includes services rendered to help manage business and run marketing campaigns, but a lot of different activities qualify as that service. For example, creating an app or site that makes it easy to view and compare different goods or services from different businesses is a form of aiding in marketing – Airbnb, for example, filed their mark under class 35. But class 35 is often filed in conjunction with other classes; it was just one of the six Airbnb filed under. So make sure you aren’t just using 35 as a catchall.
Most publishing firms file their marks under class 41, making it another popular choice. Effectively any service to entertain, train, or educate is covered by class 41. With that understanding, anyone presenting works of art or literature, i.e. publishers, for the purpose of education or entertainment use this classification, be that publication physical or online, as long as it isn’t related to publicity. Further, anyone teaching, entertaining, or helping provide the means to entertainment, like through the rental of party equipment, would file their marks under class 41.
Finally, class 42, which is used by industries that have grown rapidly over the last twenty or so years, thanks largely to technological advancement. If you, or your company, provide a service related to the theoretical or practical aspects of complex activity, its marks would be filed under class 42. Typically that means the companies that file class 42 marks are involved in industry analysis, computer programming, or scientific research for the betterment of another party – for example a firm that designs software for large-scale farming, or a scientific research company focusing on medical applications. Advanced IT management companies – firms that monitor computer systems and security – would also have their marks under class 42. The keyword is complex, so the company can’t just install computers, or sell medical supplies. A high level of skill and specialization must be involved.
Trademark classification is a little confusing, especially since many marks are registered in coordinated classes. This quick briefer should help you, though, on your first step to finding the right classification, or classifications, for your mark. Be clear as to what your company’s product or service does, as that clarity is instrumental to choosing the right classes. And, if needed, consult with an expert as choosing the wrong class could force the USPTO to reject your registration.