09 May Can I File for a Trademark if the Product or Service I Offer is Free? **Attorney Advertising **
Recently the following question about a podcaster was presented:
“I want to trademark the name of my podcast, but I’m a little confused about my ability to do so. My podcast is free. I don’t have any advertisers and the content that I offer is accessed by my listeners at no charge. If I’m not technically using the mark “in commerce” because my podcast is free, does that mean I’m ineligible for trademark protection?”
The simple answer to this question is that you are not required to make money on the product or service that your company or brand is offering in order to register a trademark.
In order for a trademark to be federally registered in the United States the Lanham Act requires that the trademark owner establish that the mark in question is currently being
“used in commerce”. A free service like a podcast is still being used in the normal course of trade, even though there is no monetary value attached to it. When you publish your content and put it out there for people to consume that is generally sufficient to establish “use” in the marketplace. Trademarks are based on source identification, even free goods or services have a source that can be protected.
What if I haven’t launched my free product yet?
If your free product or service is still in the “idea” stage and is not being used in the marketplace in any way, shape or form, you may still be able to move forward with trademarking various elements of your product, service or brand. The business or brand owner will simply need to file an Intent to Use (ITU) trademark application, which will lay out the company’s intent to use a trademark before it is actually used in commerce and provide a priority date based on the filing of the application. Use will just have to be proven before the registration is, in fact, granted.
We invite you to contact our trademark attorneys to discuss how to best protect the trademarkable elements that represent your business or brand. To schedule an initial needs assessment call, simply contact our office at 888-666-0062. We work with clients around the globe and we’d be happy to schedule a virtual consultation with you over the phone or via video conference.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.