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The Zest

How to trademark a skincare or cosmetics brand: Class 3, the description, and the crowded register

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To trademark a skincare or cosmetics brand, you file a federal application with the USPTO that names the brand, lists your specific products in Class 3, and either shows the brand in use or declares that you intend to use it. The USPTO's base fee is $350 per class. The filing itself is not the hard part. The hard part in beauty is the register, which is full of names that look and sound like yours, and the examining attorney who checks your application against all of them.

Class 3 is where cosmetics live

The USPTO sorts goods and services into 45 classes. The Class 3 heading, as the USPTO's own regulations list it, reads "Non-medicated cosmetics and toiletry preparations; non-medicated dentifrices; perfumes; bleaching preparations and other substances for laundry use; cleaning, polishing and abrasive preparations." Serums, moisturizers, cleansers, lip balm, body oil, perfume and non-medicated shampoo all sit here.

The word to watch is "non-medicated." The explanatory notes for Class 3 carve out "medicated shampoos, soaps, lotions and dentifrices," which belong in Class 5. They also send "ingredients for use in the manufacture of cosmetics, for example, vitamins, preservatives, essential oils and antioxidants" to Class 1, and "cosmetic and cleaning instruments, for example, make-up brushes" to Class 21. So a brand that sells a face serum, an acne treatment with a drug-facts panel, and a set of brushes may be looking at three classes, and most USPTO fees are charged per class. I wrote about what a class does and doesn't do in the article on trademark classes.

"Beauty products" is not a description

The USPTO will not accept a vague list of goods. The Trademark Manual of Examining Procedure (TMEP) says the identification must be "specific, definite, clear, accurate, and concise." It even uses a beauty example. In TMEP 1402.03, the manual notes that the term "beauty products" needed clarification "because the term does not have a particular commercial meaning." The same logic applies to "skincare" standing alone. You have to name the items: "non-medicated skin serums; facial moisturizers; non-medicated lip balms."

Two consequences follow. First, the list only moves in one direction after filing. The TMEP is plain about it: "the identification cannot later be expanded." You can delete or narrow, but the body wash you launch next year goes in a new application. Second, the USPTO charges for how you write the list. If you choose entries from its ID Manual, the base fee of $350 per class applies. If you type your own wording, the USPTO adds $200 per class, plus $200 for each additional group of 1,000 characters. For most skincare lines, the ID Manual already has the entries you need. I go through how to build the list in the article on goods and services descriptions.

Use now, or file on intent to use

A Class 3 application rests on one of two bases. If you're already selling, you file under Section 1(a) based on use in commerce and include a specimen: a photo of the label on the jar, the carton, or a product page with a way to buy. If you're still in formulation, you file under Section 1(b) on a "bona fide intention" to use the mark, which is the statute's phrase. That locks in your filing date before launch. Once the mark registers, the statute treats your filing date as "constructive use of the mark, conferring a right of priority, nationwide in effect."

Intent to use costs more over the life of the application. After the notice of allowance, you have six months to file a statement of use, currently $150 per class, or request a six-month extension, currently $125 per class, capped at 24 months total. I covered the strategy in the article on intent-to-use applications.

Why the beauty register is crowded, and what that does to you

Here is the part that surprises people. Your application can be refused because of a registration for goods you don't sell. The statute, Section 2(d), bars a mark that "so resembles a mark registered in the Patent and Trademark Office" as to be likely "to cause confusion, or to cause mistake, or to deceive." The TMEP adds that "the goods or services do not have to be identical or even competitive to find a likelihood of confusion." They "need only be related in some manner."

In beauty, everything is related to everything. Serums, candles, supplements and bath products sit in different classes and often sell under the same brand, in the same stores, to the same customer. So a registered candle brand can block your skincare name. The two key considerations are "the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression" and "the relatedness of the goods or services as described in the application and registration(s)." Note that last phrase: as described. Your rights are measured by the list you file, not by the products in your warehouse.

The crowding cuts both ways. Beauty names cluster around the same words: glow, pure, skin, botanical, bloom, dew. When many registrations share a term, the TMEP says that evidence "may be given some weight to show, in the same way that dictionaries are used," that the term is weak, and significant third-party use is "relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection." That can help you get past a refusal built on a shared word. It also means your own protection around that word will be narrow. I wrote more about this trade-off in the article on strong and weak trademark names.

What happens after you file

The USPTO's published timeline for use-based applications runs like this. You file and get a serial number, and it takes about six to nine months before an examining attorney reviews the application. Review takes about a month. If you get an office action, you have three months to respond. If the mark is approved, it publishes in the Trademark Official Gazette about a month later, anyone has 30 days to oppose, and registration issues within about three months after that. A clean filing runs about a year. Most of the delay in beauty comes from the office action, when the examining attorney cites a registration you didn't know about.

What this means for your brand

Before you file, settle three things: the exact name or logo as it will appear on the jar, the real list of products you sell or will sell in the next year, and whether each one is non-medicated. Then run a search that covers Class 3 and the neighboring classes, because the refusal that costs you a year usually comes from a related product under a similar name. I wrote about what a search should cover in the article on searching before you file.

If you want to talk through how a skincare line gets classified and described, 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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This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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