Who should be identified as the applicant in a trademark application?
In every trademark application filed with the USPTO, an applicant must be properly identified. This seemingly straightforward question can be somewhat confusing for trademark filers. Should the company or the individual be identified? What if there are multiple individuals involved in the business?
The applicant is the trademark owner. So in a trademark application, the applicant will most likely be the company that has been selling the relevant goods or services under the mark, or intends to do so in an Intent-To-Use application. If an individual has been or will be selling the goods/services, then the individual is the applicant
Is the applicant the person signing the trademark application?
Not necessarily. I think this may be the source of confusion, especially for first time trademark filers. If a company is the trademark owner, then the person signing the trademark application is signing on behalf of the company in their capacity as an officer, for example. The signatory is signing the trademark application not on behalf of themselves.
It may be easy to confuse a trademark application with other forms where “applicant” typically refers to the individual signing the form. The temptation then is to identify the individual signer as the applicant when it should instead be the company.
What if there are errors in identifying the trademark owner?
It is critical to identify the applicant properly. Failure to do so can jeopardize your trademark application. Only certain errors in the identification of the applicant can be corrected after a trademark application is filed. For example, minor clerical errors such as a missing “Inc.” or “The” in the applicant’s name can be corrected by amendment. If an entity changed its name before filing a trademark application and the old name was identified, such an error may be corrected. The common pattern running through all correctable errors is that the proper entity was intended to be identified, but there were minor mistakes in the indentification.
What can be fatally non-correctable is identifying the wrong party to begin with. For example, identifying the president of a company as the applicant when the company is the trademark owner would not be correctable. Another fatal error would be identifying a prior owner as the applicant when the prior had already transferred ownership to a different entity prior to filing the trademark application. Other applicant mistakes that cannot be fixed include identifying a sister corporation, or naming a subsidiary when in fact the parent corporation owns the mark.
What should you do if the applicant is incorrect?
First check to see if the error is correctable. If not, your best option may be to file a new trademark application as soon as possible, making sure to identify the proper applicant. Hopefully, the later filing date of your new application will not be a significant disadvantage. Later filing dates for similar marks may incur some risk with respect to trademark priority depending upon whether any third parties have filed for similar marks with earlier filing dates.
