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The Zest

Lash, nail, brow and hair salons: trademarking a salon name in Class 44 and what gets in the way

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A salon name is registered as a service mark in Class 44, the class that covers "hygienic and beauty care for human beings." Lash extensions, nails, brows, waxing, hair, facials and spa treatments all sit there. The base fee is $350 per class, and you file either on current use with proof the name is being used to advertise the services, or on intent to use before you open. The filing is simple. The refusals are what trip salons up, and they come from the way salons tend to name themselves: after the city, after the service, or after the owner.

Which class is a salon in?

The USPTO's class schedule puts "medical services; veterinary services; hygienic and beauty care for human beings or animals" in Class 44. That's the class for the services you perform on clients in the chair.

A salon often does more than one thing, and each thing may be a different class. Three come up a lot:

  • Class 44 for the lash, nail, brow, hair, waxing and skin services themselves.
  • Class 35 if you run a retail shop, in person or online, selling other brands' products. The Class 35 heading covers "advertising; business management, organization and administration; office functions," and retail store services are classified there.
  • Class 41, "education; providing of training," if you teach lash or brow certification classes.

Most USPTO fees are charged per class, so a salon that performs services, sells a retail shelf and teaches classes is looking at three classes. The class is a filing drawer, not a boundary on your rights. I wrote about that in the article on trademark classes.

What gets in the way: the city in the name

Salons love a place name. "DTSP Lash Studio." "Tampa Bay Brow Bar." Here is the problem. The statute bars a mark that "is primarily geographically descriptive" of the services. The Trademark Manual of Examining Procedure (TMEP) lays out three elements: "the primary significance of the mark is a generally known geographic location," "the goods or services originate in the place identified in the mark," and "purchasers would be likely to believe that the goods or services originate in the geographic place identified in the mark."

For a salon, the second and third elements are nearly automatic. The TMEP says the services/place association "may ordinarily be presumed from the fact that the applicant's goods or services originate" in or near the named place. Your salon is in the city. The name says the city. That's the refusal. The usual outcomes are a disclaimer of the place name, so you own "DTSP Lash Studio" as a whole but not "DTSP," or an acquired distinctiveness claim after years of use. I went deeper on this in the article on geographic names.

What gets in the way: naming the service

"Lash Lounge." "The Brow Bar." "Nail Studio." These names tell the client what happens inside, which is good for a sign and bad for a trademark. The statute bars a mark that "is merely descriptive" of the services, and the TMEP says a mark is descriptive if it "describes an ingredient, quality, characteristic, function, feature, purpose, or use" of them. "Lash" for lash services is about as direct as it gets.

Words like "salon," "studio," "lounge" and "bar" don't rescue the name. They're the common names for the type of business, and the TMEP says generic matter "must be disclaimed to permit registration on the Principal Register." Put a descriptive word next to a generic word and you've got nothing left to own. The fix is usually a distinctive word in front: "Marigold Lash Lounge," with "Lash Lounge" disclaimed. The disclaimer doesn't shrink the mark; the TMEP says it's still judged by "an examination of the mark in its entirety."

What gets in the way: your own name

Many salons are named for the owner. The statute bars a mark that "is primarily merely a surname," and the TMEP's test "depends on the primary significance of the mark as a whole to the purchasing public." The examining attorney looks at whether the surname is rare, whether anyone connected with the business has it, whether it has another recognized meaning, and whether it has the "structure and pronunciation" of a surname. A common last name plus "Salon" gets refused. A first name, a nickname or a full name with a distinctive look does better. I wrote about the options in the article on surname refusals.

Proving use for a service

Here is the part that surprises people. For a service, the specimen isn't a product label. It has to show "the mark as actually used in the sale of the services" and "a direct association between the mark and the services." The TMEP lists acceptable examples: "newspaper and magazine advertisements, brochures, billboards, handbills, direct-mail leaflets." A website booking page that names the salon and lists lash and brow services does the job. Mock-ups don't: "artist renderings, printer's proofs, computer illustrations, digitally created images, or similar mock-ups" are rejected. And business cards "that bear only the mark and a company name and address are not adequate." Your card has to mention the services. I covered what qualifies in the article on specimens.

The salon's own retail products

Many salons launch their own lash serum, cuticle oil or hair product under the salon name. That's a Class 3 product, and a Class 44 registration doesn't cover it. Class 3 is "non-medicated cosmetics and toiletry preparations," and putting your name on a bottle is a separate use with a separate specimen: the label or carton, not the salon website. It's another class on the application, or a new application if you add the products later, because the TMEP says "the identification cannot later be expanded" after filing.

Two cautions. If a manufacturer makes the product for you, settle in writing that the brand is yours. And a name that cleared for salon services can still be blocked for cosmetics by a registered skincare brand, because under the confusion rules the goods and services "need only be related in some manner," and beauty services and beauty products are about as related as it gets.

What this means for your salon

Before you file, look at the name and ask three questions. Does it name a place? Does it name the service? Is it a last name? If the answer to any of those is yes, plan on a disclaimer at minimum and think about adding a distinctive word. Then decide which classes you're in today, line up a specimen that ties the name to the services, and keep the retail products in mind if they're coming within the year.

If you want to talk through how a salon name gets classified and what the likely refusals are, 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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Sources

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

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