Nutritional Supplement Trademarks
One of the most popular requests we have are clients seeking a trademark application for vitamins or nutritional supplements. This is largely because the supplement industry is more than a $30 billion-a-year industry and still growing. Given this competitive nature of the industry, many manufactures and sellers of supplements have sought out federal trademark protection to protect their name. Not only is such protection necessary to help prevent others from using your name, but it also helps to prevent future disputes over the name.
Nutritional Supplement Trademark First Step
Filing a trademark application starts with a search. It is important that a thorough search is conducted before you apply for a trademark with the United States Patent and Trademark Office (“USPTO”). This is because certain applications can open you up to liability for trademark infringement, which you could have prevented at the outset. While the USPTO does provide a database where the public can search, their search tools make it difficult to search for other marks that would be considered confusingly similar – not just identical – to your mark. It is for this reason we strongly encourage our clients to hire a lawyer to conduct these types of searches, as they typically use different software to help uncover such marks.
A search by an experienced trademark attorney is also important because there are other classes and types of goods that Examiners at the USPTO consider substantially similar to vitamins and supplements. As a result, these classes and types of goods must also be considered in the likelihood of confusion analysis. For example, a retail store featuring health-related products, which may or may not include vitamins and nutritional supplements, could pose an issue with you acquiring registration of a confusingly similar name for vitamins and supplements.
- Start with a trademark clearance search
- Review which classes apply to your goods/services
Once a search has been completed, and you have determined that the name is registrable, you are now faced with the application. Although at first glance the application with the USPTO seems fairly straight forward, there are many nuances to the application that if answered incorrectly could later lead to a void application. For example, ownership can be tricky and where the incorrect owner or owners have been listed, this could be a basis to later void the application.
- Make sure owner information is correct
Trademark Application for Vitamins – FDA Implications
Another issue with submitting the application is the description of the vitamins and supplements, or the description of the goods. Specifically, the oversight of the U.S. Food & Drug Administration, or “FDA,” does make it important that the description does not make inaccurate claims. The FDA is a federal government agency whose purpose is:
“Protecting the public health by assuring that foods are safe, wholesome, sanitary and properly labeled; ensuring that human and veterinary drugs, and vaccines and other biological products and medical devices intended for human use are safe and effective.”
In other words, there are limitations the FDA places on manufacturers and sellers of vitamins and nutritional supplements as to the claims they make in relation to their products. As a result, this can sometimes affect the way you would draft the trademark’s description on the application. For example, the use of “dietary supplements for the treatment of ___” could possibly have implications that you would want to avoid. It is for this reason that we strongly encourage a person seeking a trademark to contact an attorney regarding the best options for describing your vitamins and/or nutritional supplements on your trademark application.
- Don’t make false claims
- Ensure you are compliant with FDA
Trademark Application Timeframe
Once submitted to the USPTO, it’s a sit and wait game. Assuming you have had an attorney conduct a comprehensive search, you should be generally aware of the risks you face with your application being approved. Therefore, the sit and wait game is not as bad. However, normally it takes 3-4 months for the application to be assigned to an Examiner. Once approved, if the trademark is not descriptive, it will be approved for registration and given a publication date. Typically, this publication date is about 1-2 months after review of the application by the Examiner. This publication date will start a 30-day period where anyone who would be damaged by your registration can oppose registration. Opposition of an application for trademark registration is typically rare. In most cases, it arises in situations where the client or applicant knows there could be issues of opposition prior to submission of the application.
- Once filed, it is 3-4 months before you hear from USPTO
- Publication/Opposition period takes an additional 2-3 months
Assuming nothing holds your application up with the USPTO, registration or your notice of allowance (if you filed an intent to use application) will generally be issued 1-2 months after the 30-day opposition period ends. All toll, from the start of the application, this takes about 6-8 months.
- Full trademark process is about 11 months
Vitamins and Nutritional Supplements – Trademark Policing
After the process has been completed and you now have your registration, it is important that you closely monitor the use of your mark. This means that you need to look out for others using your mark, or a mark that is confusingly similar. Again, the vitamin and nutritional supplement industry is competitive. Therefore, there is a much greater chance that someone will attempt to infringe on your trademark if you are not careful. This is especially where your vitamins and nutritional supplements are doing well in the market.
- Keep an eye out for confusingly similar vitamin or nutritional supplement trademarks
Infringement can also be a huge problem in the vitamin and nutritional supplement industry where the infringer uses improper claims of the vitamin and/or supplement. In these cases, you could be opening yourself up to liability with the FDA. For these reasons, and others not mentioned, monitoring your mark in the supplement industry is imperative to ensuring the success of your company.