How to Patent a Phrase and Secure Legal Protection

Key Takeaways

• Phrases cannot be patented, but they can be trademarked if they identify the source of goods or services.
• Trademarking a phrase gives you exclusive rights within your industry.
• The phrase must be distinctive and not cause consumer confusion with existing marks.
• You can file a trademark as "in use" or "intent to use" with the USPTO.
• Specimens, format choices, and field classifications are crucial in the application.
• You must monitor, enforce, and renew your trademark to maintain protection.
• A trademark attorney can help ensure a smooth process—find one on UpCounsel.

How to Patent a Phrase

While you can learn how to patent an idea here, unfortunately, it is not possible to patent a phrase. Instead, you can trademark a phrase by registering it with the U.S. Patent and Trademark Office. Before registering, someone looking to trademark a phrase would need to make sure that it is available and not currently trademarked by anyone else. 

Individuals and businesses can trademark any phrase, which has a secondary meaning that connects to a product or service.

What Makes a Phrase Eligible for Trademark Protection

To trademark a phrase, it must meet certain legal criteria established by the U.S. Patent and Trademark Office (USPTO). Here are key considerations:

• Distinctiveness: The phrase must be unique enough to distinguish your goods or services. Generic or overly descriptive phrases typically won’t qualify.
• Use in Commerce: It must be used in connection with selling goods or services across state lines.
• Not Already Taken: The phrase must not be confusingly similar to an existing trademark, especially in a similar industry.
• Secondary Meaning: For some phrases, particularly slogans, the USPTO may require proof that the public associates the phrase with your brand.

Avoid phrases that are common, misleading, offensive, or too vague to function as identifiers of origin.

Reasons to Trademark Your Phrase

• It helps you create unique marketing materials. A phrase can be an important part of your long-term marketing strategy. However, if your competitors profit from it, your phrase will quickly lose its value.  This includes "catchphrases," which gains popularity through their use by a person, or even a fictional character. Catchphrases also are now an important part of a marketing strategy. A registered trademark grants you exclusive rights within your industry to use your phrase in commerce anywhere in the country. It trumps territorial ownership rights to the phrase, like those used by a small bricks-and-mortar business operating in just one city. Although, in most circumstances, a business in a non-competing sector can use your phrase for profit.
• It increases brand recognition. When a phrase is exclusive to your marketing materials, customers learn to connect the phrase to your product. The best phrases become brands in their own right, like "Just Do It" for Nike and "Life's Good" for LG.
• It can appeal to customers. If consumers like your trademarked phrase, they'll probably like your product. If they are undecided between your product and a similar one, remembering your phrase could sway them towards your brand. Over time, a well-known phrase can suggest your product is a quality one.
• It can create buzz. While a trademark stops people from profiting from your phrase, it doesn't stop them from using it in everyday conversation. This is a good thing because it can help a phrase go viral. When people use your trademarked phrase they think of your brand, even if they aren't purchasing. This helps create goodwill for your brand.
• It improves your legal standing. When you've registered your trademarked phrase, you can sue any competing business that profits from it for damages. Similarly, you're protected if another company files an infringement lawsuit against you. The prosecutor must show your registered phrase doesn't deserve legal protection, which is very difficult to prove.

Common Types of Trademarkable Phrases

The most successful trademarked phrases fall into several common categories:

• Taglines or slogans: Such as “Think Different” (Apple).
• Catchphrases: Often used by entertainers, like “Let’s get ready to rumble!”.
• Brand mottos: Reflecting brand ethos—e.g., “Because You’re Worth It” (L'Oréal).
• Service identifiers: Phrases that clarify or distinguish services offered.
• Pop culture references: Phrases from books, movies, or viral content, if used commercially.

Registering these types of phrases helps establish brand voice, build trust, and prevent misuse.

Getting a Trademark

Any distinctive phrase used in interstate commerce can be trademarked simply by using it regularly and openly. Also, use the trademark symbol, ™, anywhere the phrase is printed. These acts give your phrase some limited protection. You can file a lawsuit against any competitor using your phrase that doesn't have the same history of regular use because you've already given "constructive notice" it belongs to you. However, it's harder to win a case against a business that has a registered trademark for the phrase.

For extra protection, register your phrase's trademark. If you only want to use the phrase within your state, you could register it with your state's trademark office. The US Patent and Trademark Office (USPTO) gives national coverage. This body approves new U.S. trademarks and monitors existing ones to prevent infringement. It is suggested that you register your phrase early, as proving ownership can be difficult once it enters common use.

Understanding "Intent to Use" vs. "Use in Commerce"

The USPTO allows two filing bases when registering a phrase:

1. Use in Commerce (Section 1(a)):
   • Choose this if you are already using the phrase commercially.
   • You’ll need to submit a specimen—such as packaging, advertisements, or websites showing the phrase in actual use.
2. Intent to Use (Section 1(b)):
   • Ideal if you have not yet used the phrase but plan to.
   • After approval, you’ll need to submit a Statement of Use before the mark is fully registered.

An "intent to use" application allows you to secure priority before publicly launching a brand.

Before You Register Your Trademark

• Learn more about trademarks. Before getting a registered trademark, you should understand more about it. The Trademark Basics section on the USPTO website is a good place to start.
• Confirm your phrase satisfies the trademark "original works" guidelines listed on the USPTO website.
• Search the USPTO's Trademark Electronic Search System for your phrase. Enter your phrase into the "Word and/or Design Marks" section, under "Search Marks." This will determine whether another person or business has already trademarked your phrase. Search within the categories you intend to use your phrase. If your phrase has already been trademarked, you'll need to develop a new one. You should also worry about phrases similar to yours, as the USPTO won't trademark anything with the potential to confuse consumers.
• Decide how you'll use your phrase. This step is easy if you're already using the phrase. If you're not, you'll need to plan your intended usage.
• Find out your trademarked phrase's field class. This is the category of products and services attached to your phrase. The USPTO's Acceptable Identification of Goods and Services Manual lists these categories. You can select just one or many classes, depending on how you'll use your phrase.
• Choose your phrase's format. Think about your preferred font and format, such as capital letters or bold type.

Strength of Your Trademark Phrase

Trademark strength affects your protection level. Phrases are evaluated along a spectrum of distinctiveness:

• Fanciful (made-up words): Highest protection (e.g., “Xerox”).
• Arbitrary (existing words used out of context): High protection (e.g., “Apple” for computers).
• Suggestive (hints at qualities): Moderate protection (e.g., “Netflix”).
• Descriptive (directly describes product features): Low protection; may require proof of secondary meaning.
• Generic (common terms): Cannot be protected.

The more distinctive your phrase, the more likely it is to be registered and defended in court.

Steps to Register a Trademark

• Download and complete the Initial Application Form. If your phrase isn't already trademarked, you can start the trademarking process by downloading this PDF. Complete the application form on your computer or print it out to complete offline. Make sure to include all relevant information including:
  • Your name
  • Your address
  • Your phone number
  • Other information about you or the company you represent
  • The exact phrase you want to be trademarked formatted as you'll use it. Attach or upload a file containing your phrase in the correct typeface and colors.
  • Your phrase's field class or classes
  • How you created the phrase
  • How you'll use the phrase
• Proofread your application. Make sure you haven't made any spelling errors or left sections incomplete. Mistakes can delay your approval.
• Submit the form and pay the filing fee. Mail applications with one field class cost $275 and electronic applications cost $325. The same amounts apply for every additional class. This amount is non-refundable. You should send a check with your mail application made out to the U.S. Patent and Trademark Office.
• Record the USPTO serial number. This is the receipt for your application, so make sure you keep it safe.

Tips to Improve Your Trademark Application

To increase the likelihood of approval:

• Be precise in your phrase’s spelling, punctuation, and capitalization.
• Submit a clear specimen showing the phrase in use with your goods or services.
• Avoid vague language in your goods/services description; use the USPTO’s Acceptable Identification of Goods and Services Manual.
• Double-check format: You can submit your phrase in standard character format (protects text broadly) or special form (protects specific fonts/designs).
• Consider international protection via the Madrid Protocol if you plan to operate globally.

Steps for After You File Your Trademark

• You may receive an Office Action. This means you need to rework your application. You might rewrite your statement of use, clarify the information you've given, or add more details. A trademark lawyer can help with these alterations. Send your response to the trademark examiner.
• Once your application is approved, you should use the registered trademark symbol ® whenever you publish your phrase.
• Enforce your trademark. Send a cease-and-desist letter if anyone uses your phrase for profit. If the other party doesn't comply, you can file an infringement lawsuit.

Enforcing and Maintaining Your Trademark

Registering your trademark is only the beginning. To maintain and defend it:

• Monitor use: Watch for unauthorized or infringing uses of your phrase.
• Send cease-and-desist letters to violators promptly.
• File necessary renewals:
  • Between the 5th and 6th year after registration: File a Declaration of Use (Section 8).
  • Every 10 years: File a Renewal (Section 9) and continued use declaration.
• Use the ® symbol only after the trademark is registered, not before.
• Consider enrolling in the USPTO’s Trademark Monitoring and Enforcement programs.

Frequently Asked Questions

1. Can you actually patent a phrase?
   No. Phrases cannot be patented—they can only be trademarked if they identify and distinguish goods or services.
2. How much does it cost to trademark a phrase?
   USPTO filing fees range from $250 to $350 per class of goods or services, depending on the application form used.
3. How long does it take to register a phrase as a trademark?
   The process can take 8–12 months or longer, depending on the complexity of your application and whether you receive any Office Actions.
4. Can I trademark a phrase I’m not using yet?
   Yes, through an “intent to use” application, but you must eventually submit proof of use to finalize registration.
5. What happens if someone else uses my trademarked phrase?
   You can issue a cease-and-desist letter or file an infringement lawsuit. Registering your phrase gives you stronger legal standing.

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