Who May Apply

An application to register a mark must be filed by the owner

of the mark or, in the case of an intent-to-use application under

15 U.S.C.

§1051(b)

, by the person who has a bona fide intention to use the

mark in commerce.

15 U.S.C.

§1051(a)(1)

,

(b)(1)

.  Normally the owner of a mark is the person who applies

the mark to goods that the person produces, or uses the mark in the sale or advertising

of services that the person performs.  See

TMEP §§1201–1201.07(b)(iv)

regarding

ownership, and

TMEP

§§501

and

502–502.03

regarding assignment of

marks and changes of ownership.

If an applicant is not the owner of the mark (or does not

have a bona fide intent to use the mark in commerce) at the time the application is

filed, the application is void and cannot be amended to specify the correct party as the

applicant, because the applicant did not have a right that could be assigned.

37 C.F.R. §2.71(d)

;

TMEP §803.06

.

Applicants may be natural persons or juristic persons.

See

15 U.S.C. §1127

.

Juristic persons include corporations, partnerships, joint ventures, unions,

associations, and other organizations capable of suing and being sued in a court of law.

Id

.  An operating division, or the like, that is merely an

organizational unit of a company and not a legal entity that can sue and be sued, may

not own or apply to register a mark.

See

TMEP

§1201.02(d)

.

Nations, states, municipalities, and other related types of

bodies operating with governmental authorization may apply to register marks that they

own.

See

In re Mohawk Air Servs.

Inc.

, 196 USPQ 851, 854

(TTAB 1977) ;

NASA v. Record Chem. Co.

, 185 USPQ 563, 566 (TTAB

1975);

In re U.S. Dep't of the Interior

, 142 USPQ 506, 506 (TTAB

1964).

The question of whether an application can be filed in the

name of a minor depends on state law.  If the minor can validly enter into binding legal

obligations, and can sue or be sued, in the state in which the minor is domiciled, the

application may be filed in the name of the minor

Record Chem. Co.

, 185 USPQ 563, 566 (TTAB

1975);

In re U.S. Dep't of the Interior

, 142 USPQ 506, 506 (TTAB

1964).

The question of whether an application can be filed in the

name of a minor depends on state law.  If the minor can validly enter into binding legal

obligations, and can sue or be sued, in the state in which the minor is domiciled, the

application may be filed in the name of the minor.  Otherwise, the application should be

filed in the name of a parent or legal guardian, clearly setting forth the parent or

legal guardian's status as a parent or legal guardian.  An example of the manner in

which the applicant should be identified in such cases is:

John Smith, U.S. citizen, (parent/legal guardian) of Mary

Smith.

If the record indicates that the named applicant is a minor,

the examining attorney must inquire as to whether the person can validly enter into

binding legal obligations under the law of the state in which the minor is domiciled.

If the minor cannot enter into binding legal obligations, the examining attorney must

require correction of the applicant-identifying information in the manner shown above,

if necessary.

If a minor comes of age during the prosecution of an

application in which the minor's parent/legal guardian is identified as the applicant,

the application may be amended to change the applicant’s name. No assignment is required

in such cases. However, the minor must also state the minor's citizenship. See also

TMEP Chapter 500

regarding assignments, name changes, and

issuance of a registration in the name of an assignee or in an applicant’s new name.

See also

TMEP §1002

regarding eligibility to

file an application under §44 of the Trademark Act,

15 U.S.C.

§1126

, and

TMEP §1901

regarding eligibility to

file a request for an extension of protection of an international registration to the

United States under §66(a) of the Act,

15 U.S.C.

§1141f(a)

.