Creating a distinctive brand is one of the best ways to build a new business. However, it’s important to protect your intellectual property while doing so.
In order to protect your brand, consider applying for trademarks for your business. When you apply for a new trademark, you’ll need to know which trademark class your products and services come under.
In this article, we’ll talk about just one of those classes—class 41, “Education and Entertainment Services.” We’ll discuss how to know if your trademark falls into this class, and what other classes you might want to apply for. We’ll also go over how you can maintain your trademark once you’ve applied.
How Does a Class 41 Trademark Work?
Trademarks are primarily used as a legal way to fight against infringement. By registering your mark, you gain certain legal protections that will hold up in federal courts.
Think of a trademark like a legal shield that can protect your brand from harm. While it’s possible to fight against infringing marks without a trademark, it’s generally a bad idea. For this reason, registering your mark can give you significant peace of mind.
The USPTO allows you to trademark pretty much every form of branding. This can include names, slogans, symbols, smells, and any number of other things which make your brand distinct.
However, your exclusive right to use these marks only applies within the same trademark class. In other words, companies outside your trademark class can use similar branding at their leisure.
Thus, it’s very important that you choose the correct class for your trademark before you apply. Note that, while you can apply under more than one trademark class, it is more expensive to do so.
Changing Your Trademark Class
You may need to change your trademark class after you’ve applied. This is particularly true if your business expands into new areas but you want to use the same branding. At that point you may need to speak with a lawyer to determine how to get trademark protection in a new classification.
In most cases, you’ll reapply ten years after your first trademark application. However, you can also decide to do so earlier. Keep in mind that you will still need to prove that your business uses the mark in commerce. Failure to do so can make the USPTO consider your mark abandoned.
Understanding Class 41 Trademark Services
Class 41 trademark services all relate to education or entertainment. This is a very broad trademark category that covers a wide variety of subjects. While it’s impossible to list every class 41 trademark services, the following are some of the most common:
Publishing and Translation
Almost all intellectual properties related to publishing of any kind are class 41 trademark services. This includes both print and electronic texts. Class 41 also includes translation services of all varieties, including:
Most forms of media production fall under trademark class 41. This includes the production, rental, and sale of film and sports equipment. It also includes audio or video editing services, but not generally the production of editing software.
Sports, Gaming, Gambling, and Fitness Services
Services relating to sporting, gaming, gambling, and fitness are all class 41 trademark services. However, note that vehicle related services do not generally fall under class 41.
Many services catering to schools, universities, and libraries fall under trademark class 41. Additionally, education services for individual consumers (such as animal training classes) are always class 41 services.
In many cases, IPs will fall under more than one trademark class. In such a case, you’ll want to apply under both. Here are a few examples pertinent to common class 41 trademark businesses:
- Services related to computer education or entertainment are generally class 42 (technology) services. They may produce class 9 (electrical) goods, such as software.
- Advertising agencies that specialize in entertainment or education fall into both class 41 and class 35 (advertising).
- Businesses which produce branded clothing relating to entertainment properties should apply under class 41 (for the service) and class 25 (for the clothes themselves).
In general, note that class 41 is a service class. If your business produces goods of any kind, you will need to apply for separate trademarks for those goods.
Finding Similar Trademarks
Now that you have an idea of what trademark class(es) you should be applying under, it’s time to do some research. Before you submit your application, make sure you check the USPTO’s trademark database for similar trademarks. It’s free to use the database, which lists active trademarks by class.
If you find a similar trademark within the database, you have two options. You’ll need to either change your trademark, or apply under a different trademark class. Note that the USPTO will not be of any use here—they have a policy of not providing advice prior to filing because they cannot represent you.
Instead, you’ll want to rely on the counsel of an experienced trademark lawyer to see you through the application process.
Maintaining Your Trademark
Note that you can still lose a trademark even if your application is accepted. In order to avoid this process, called abandonment, your trademark needs to see use. In most cases, this means keeping track of possible infringement and pursuing legal action against the responsible parties. You’ll also need to keep careful track of these proceedings, and file reports on them with the USPTO.
You’ll also want to keep a lookout for unfair trade practices. These are practices not related to infringement which still cause customer confusion. For example, unauthorized persons claiming to represent your company falls under unfair trade practices. As with infringement, you must make regular reports on cases of unfair trade practices to avoid abandoning your trademark.
When applying for and maintaining your trademark, the most important thing is to be prepared. The most successful IP holders are those who sort out potential legal issues before they apply. While this can be daunting, an experienced trademark lawyer will make the process significantly easier.