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The Zest

A Trademark Class Is a Filing Category, Not a Fence Around Your Brand

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A trademark class is a numbered category that the USPTO uses to sort the goods and services in trademark applications. There are 45 of them: classes 1 through 34 cover goods, and classes 35 through 45 cover services. Every application has to place its goods or services in at least one class, and most USPTO fees are charged per class.

That's what a class is. What a class isn't is just as useful to know. It doesn't define how far your rights reach, and being in a different class from someone else doesn't mean you're in the clear.

Where the 45 classes come from

The system is called the Nice Classification, named for the Nice Agreement of 1957. The World Intellectual Property Organization maintains it and publishes updated versions, and trademark offices in many countries use the same class numbers. The USPTO calls them "international classes" and lists them in its own rules at 37 C.F.R. § 6.1.

Some examples from that list give the flavor:

  • Class 3: non-medicated cosmetics and toiletry preparations
  • Class 9: a wide group that includes software, computers and scientific and recording apparatus
  • Class 25: clothing, footwear and headwear
  • Class 30: coffee, tea, bakery goods and confectionery
  • Class 35: advertising and business services
  • Class 41: education, training and entertainment
  • Class 43: services for providing food and drink

A single class can hold a lot of very different things. And goods and services are never in the same class. A bakery that sells packaged cookies and also runs a cafe is looking at one class for the cookies and another for the cafe.

Why the number of classes changes your bill

The USPTO's filing fee is based on the total number of classes in the application. The base fee is $350 per class, so an application covering two classes starts at $700. One application can cover several classes, but under 15 U.S.C. § 1112 the fee equals the sum of the fees for filing in each class. There's no bundle discount.

The per-class math follows the mark through its life. Later filings, such as a statement of use in an intent-to-use application, are also charged per class, and so are fees at the Trademark Trial and Appeal Board. The full fee picture, including the surcharges that can be added per class, is in the article on what a trademark costs.

So the number of classes is a budget decision. But it should follow from what you actually sell or have real plans to sell, not from a wish to cover as much ground as possible. You can only register a mark for goods and services you use it on or have a bona fide intention to use it on.

The class doesn't define your rights. The description does.

Here is the part that surprises people. The statute that authorizes the class system says it exists "for convenience of Patent and Trademark Office administration" and is "not to limit or extend the applicant's or registrant's rights." That's 15 U.S.C. § 1112.

In other words, registering in Class 25 doesn't mean you own the name for everything in Class 25. Your registration covers the goods and services written in it. If your identification says "t-shirts and hats," that's what the registration is for, even though Class 25 also holds shoes, coats and swimwear. The registration is evidence of your exclusive right to use the mark for the goods or services listed in it, and the wording of that list is what gets compared when a conflict comes up.

That's why the description deserves more attention than the class number. Getting the wording right, and the surcharge for writing your own instead of choosing from the USPTO's pre-approved list, is covered in the article on the goods and services description. The class number mostly follows from the description, not the other way around. The USPTO has also brought AI into classifying applications, which I wrote about in the article on the USPTO's AI classification tool.

Same name, different classes: sometimes fine, sometimes not

Because the class is administrative, it doesn't decide whether two marks conflict. The test for a conflict is likelihood of confusion, and it turns on how similar the marks are and how related the goods or services are. Relatedness is a real-world question, not a class-number question.

That cuts both ways.

The same name can coexist when the goods or services are unrelated. The USPTO's own examples are Dove for soap and Dove for ice cream bars, and Delta for faucets and Delta for air transportation. Buyers don't expect those to come from one company.

And the same name can conflict across different classes when the goods or services are related. According to the USPTO, goods or services may be related when they're similar or competitive, used together, bought by the same purchasers, advertised together, or sold by the same manufacturer or dealer. A clothing brand and a jewelry brand sit in different classes, but a shopper could easily assume they're the same company.

The reverse also holds. Two businesses in the same class aren't automatically in conflict, because a single class can contain goods that have little to do with each other.

Coordinated classes: the USPTO's own list of neighbors

The USPTO builds this idea into its search system with what it calls coordinated classes. These are groups of classes where the goods or services in one are closely related to the goods or services in another.

The USPTO's example is Class 25, clothing. Its coordinated classes include Class 14 for jewelry, Class 18 for leather goods such as handbags, and Class 35, which includes retail store services. The reasoning is that many clothing companies also sell jewelry and handbags or run retail stores, so a shopper could reasonably expect one company to offer all of them.

Coordinated classes are a search aid, not a legal rule. The USPTO itself says they aren't foolproof, and that a search narrowed too tightly by class can miss relevant marks. They're a useful reminder, though, of how examining attorneys and courts think: in terms of what buyers would expect, not in terms of which numbered box something was filed in. That's also why a search that looks only at your own class can miss the registration that ends up blocking you, a point I cover in the article on searching before you file.

How to think about classes for your own brand

Start with what you sell, in plain words. The goods and services come first, the description comes second, and the class numbers fall out of those. Then count the classes, because that's what sets the fee. If the count is more than the budget allows, the usual answer is to file first for the goods or services at the center of the business and add others later with a new application. Under the USPTO's rules, the list in an application can be clarified or limited, but not broadened.

And when you're checking whether a name is available, look past your own class to the ones next door.

If you want to talk through how your own products and services would 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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Sources

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

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