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Applying for a U.S. Trademark Registration: Punctuation Matters(?)

By Ira S. Sacks, Mark S. Lafayette, and Patricia M. Carlson1

It is not uncommon for a trademark owner to apply for and/or obtain a U.S. Trademark Registration for a trademark without any punctuation even though it intends to use or is using the trademark in commerce with punctuation. By way of illustration, consider the well-known brand NABISCO, owned by Kraft Foods. Notably, the mark CHIPS AHOY is registered with the U.S. Trademark Office without an exclamation point; yet some of the products sold use - and a submitted specimen of continued use shows use with - an exclamation point, CHIPS AHOY!. Frito Lay, Inc., by way of another example, has U.S. Trademarks Registrations for BAKED LAYS, BAKED TOSTITOS, and BAKED RUFFLES (without exclamation points), yet uses the marks - and submitted specimens of continued use of the marks - with exclamation points, BAKED! LAYS, BAKED! TOSTITOS, and BAKED! RUFFLES.

That is the general rule. It is only under certain very limited circumstances - where punctuation changes the commercial impression of the mark - where the failure to include punctuation as part of the applied-for mark in a U.S. Trademark Application could result in the rejection of the application. Indeed, most punctuation - such as exclamation points - are legally and factually irrelevant. One of the...

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