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The Zest

Workout apps and digital programs: Class 9, 41 or 42?

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It depends on how the customer gets it, and most fitness apps end up in more than one. An app people download from an app store is software in Class 9. A platform people log into without downloading anything is a Class 42 service, which the class list calls "software as a service [SaaS]." The training itself, the workouts, classes and coaching you deliver through either one, is a Class 41 service.

Three ways to deliver, three classes

The USPTO sorts goods and services using the international Nice Classification. For a fitness tech product, three classes do most of the work.

  1. Class 9, downloadable software. The Class 9 list includes "computer software applications, downloadable." The TMEP, the manual USPTO examiners follow, says software belongs in Class 9 when it's recorded on media or downloadable. Your iOS or Android app is here.
  2. Class 42, software used online. The Class 42 list includes "software as a service [SaaS]" and "providing online non-downloadable computer software." A browser dashboard where gym members book classes, or a web platform where clients track lifts, is here. The TMEP describes this as "the Class 42 service of providing temporary use of online non-downloadable computer programs and software."
  3. Class 41, the training. The Class 41 note covers "sports and fitness training services," and the list includes "personal trainer services [fitness training]," "conducting fitness classes" and "providing online videos, not downloadable." The workouts and coaching are here, no matter what screen they show up on.

I wrote more about how software classes work for tech founders on the SaaS page.

The description has to say what the app does

Here is the part that surprises people. "Downloadable mobile app" isn't enough. The TMEP says an identification for software "must indicate the function or purpose of the goods," and if the software is specific to a field, the field goes in too. So the description reads more like a downloadable app for tracking workouts and logging exercise sets than a bare "fitness app."

The USPTO's pre-approved wording is in the ID Manual. If you write your own description in the free-form box instead, there's a $200 per class surcharge on top of the $350 base fee per class. I walked through how descriptions get written in the article on goods and services descriptions.

Software or a service: the specimen decides

Filing in Class 41 or 42 means you'll eventually prove you're performing a service, not just handing people a tool. The TMEP is direct about this.

  • "A term that only identifies a computer program does not become a service mark."
  • But "Even though a service may be performed by a company's software, the company may well be rendering a service."
  • For technology services, the examiner checks whether you're "actually performing the relevant service activities for others" or "merely providing software that allows users of the software to perform those activities themselves."

For services delivered through an app, the screenshot has to show the mark "directly associated with the identified services." The TMEP says "mere depiction of the mark in the screenshot without sufficient depiction of the activity identified in the services" doesn't do it.

So picture two apps. In one, users log their own runs and the app charts them. That's software, and Class 9 is the natural fit. In the other, your coaches build each client's plan and send feedback through the app. That's a training service rendered through software, and the screenshots need to show the coaching happening, not just your logo on a splash screen. I covered what a good specimen looks like in the article on specimens.

What about wearables and hardware?

If the brand goes on a device, the class shifts again. The Class 9 note includes "smartwatches, wearable activity trackers." But Class 9 excludes "pulse meters, heart rate monitoring apparatus, body composition monitors," which go in Class 10. A strap that counts reps and a chest strap that reads heart rate may not land in the same class.

A typical fitness app filing

Here's how it usually maps for a founder who has all three pieces:

  • The phone app: Class 9.
  • The web dashboard clients or gyms log into: Class 42.
  • The programs, classes and coaching: Class 41.

Each class is a separate fee. And you can't add later: the rule says an applicant can amend a description "to clarify or limit, but not to broaden" it. If you file Class 9 only and launch a coach-led tier next year, that tier needs its own application.

If the app isn't live yet, you can still file based on a bona fide intent to use the name, and prove use later. I explained how that works in the article on intent-to-use applications.

What this means for your business

Make a list of what a customer actually gets. A download, a login, a coach, a device. Each one points to a class. Then write each description around what that piece does, because the description, not the class number, is what the registration covers. And plan your specimen before you file: a screenshot showing the service in action is what gets Class 41 and Class 42 claims through.

If you want to talk through how your app and programs should be classified, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

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(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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