Trade Or Service Mark Application Form 901
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9Form 901—Instructions
(Trade or Service Mark Application)
The attached form is designed to meet minimal statutory filing requirements pursuant to the
relevant code provisions. The form and the information provided are not substitutes for the advice
and services of an attorney.
General Information
Trade and service marks are commonly referred to as brand names, logos or slogans. Trademarks are
used to identify tangible goods. Service marks are used to identify services. The term “mark” is used to
refer to both trademarks and service marks.
Trade names not registrable. “Trade names” are terms used only to identify a business organization,
rather than to distinguish the goods or services provided by the business. A company name may be
viewed to be merely a trade name, instead of a mark, if it is advertised in such a way that it attracts little
attention, is used in close proximity to an address or phone number, or is dominated by the presence of
another mark. However, a company name may be registered if it is shown to function as a mark.
Effect of registration. The registration of a mark with the secretary of state creates a statewide priority of
rights in the mark against any other person who subsequently adopts the same or a confusingly similar
mark. Registration also provides “constructive notice” to all persons in the state of Texas of the priority
of the registered mark and provides the owner with certain procedural advantages when the owner seeks
judicial relief for infringement. For these reasons, it is beneficial for an owner of a mark who does
business in Texas to register a mark with the secretary of state.
Applicant should conduct a conflict check. Since identical or confusingly similar marks may not be
registered by more than one person, a person planning to use or register a mark should take steps to
determine whether others have priority of rights to that mark. Although checking the active registrations
on file with the Secretary of State can be a useful step, the absence of a conflicting registration on file
does not mean that no one else claims priority of rights in the mark.
Requirements for Registration
Mark Must Be In Use: Registration of marks in Texas is based on actual use of the mark in Texas
commerce. For example, before an application can be submitted to the secretary of state, the trademark
must be used on a product sold or distributed in Texas, or the service mark must be used in association
with services rendered in Texas (during advertising or sale). A proposed mark may not be “reserved”
prior to its actual use in Texas commerce or before the submission of a properly completed and filed
application. If an application is submitted prior to actual use, registration will be refused, and the
processing fee submitted with the application will not be refunded.
Mark Must Be Distinctive: Only distinctive words, names, symbols, devices, or logos are entitled to
registration. A designation that is primarily a surname, or that is commonly used in describing the
product or service, or that directly describes the qualities or characteristics of a product or service is not
distinctive on first use and not entitled to registration. For example, the terms "Food & Beverage On-
Line" would not be entitled to registration when used in association with "a news and information
service for the food processing industry contained in a database" since such terms would be merely
descriptive of such a service. However, sometimes a designation that is not inherently distinctive may
acquire distinctiveness through at least five (5) years of continuous and substantially exclusive use.
Form 901
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