When applying for a trademark that includes a logo (design mark), you may encounter a term called the “Literal Element” in your application. This article explains what the Literal Element is, why it’s included, and common misconceptions about its role in your trademark rights.
The Literal Element refers to the textual portion of your logo as described in your trademark application. It is extracted from the design mark to help the USPTO (United States Patent and Trademark Office) identify and search for trademarks with similar text. For example, a logo featuring the phrase “Sunny Days” integrated with a sun graphic will have “Sunny Days” listed as its Literal Element.
Many applicants mistakenly believe that the Literal Element is the trademark they are registering. In reality, the actual trademark is the entire design mark, which includes text (as styled in the design), fonts, colors, and arrangement, as well as graphics, shapes, and other visual elements. The Literal Element is merely an administrative feature of the application, not the essence of your trademark.
The USPTO uses the Literal Element as a search tool and a point of clarification. It allows examiners to compare the textual portion of your logo with existing trademarks to identify potential conflicts. For example, if “Sunny Days” is the Literal Element, the USPTO can search for other trademarks containing the phrase “Sunny Days.” It also provides a reference point for the textual content of stylized or integrated words within the design mark.
It’s important to understand what the Literal Element does not do. It does not represent your trademark. The registration covers the complete visual representation of your logo, not just the text extracted as the Literal Element. It does not provide exclusive rights to the words. If you want to protect the words themselves (e.g., “Sunny Days”) independently of the design, you must file a separate application for a standard character wordmark. Lastly, it does not replace the design analysis. In a logo trademark application, the USPTO evaluates the entire design mark—including text, graphics, and stylization—when determining protection and infringement risks.
Some applicants believe that the Literal Element functions as a standalone wordmark or that listing certain words in the Literal Element automatically grants exclusive rights to those words. This is not the case. The Literal Element is purely for USPTO search and administrative purposes. Your logo application protects the design as a whole, including the specific arrangement and graphical elements of the text.
To ensure comprehensive protection, consider filing a separate wordmark application if needed. If the words in your logo are central to your brand, you may want to file both a design mark application (for the logo with graphics and stylized text) and a wordmark application (for the words in standard characters). Additionally, be prepared to address Office Actions related to the Literal Element. The USPTO may issue Office Actions comparing your Literal Element to existing wordmarks. While these actions are based on textual similarity, the examiner will also assess the design elements when evaluating the likelihood of confusion.
A design mark application does not grant rights to the words alone. It protects the unique combination of text, style, and graphics. To ensure your brand is fully protected, it’s essential to understand the distinction between design marks and wordmarks.
The Literal Element in a logo trademark application is a tool to assist the USPTO in its search for conflicting marks. It does not define the scope of your trademark rights or grant independent protection for the words. To ensure comprehensive protection, consider the relationship between your logo and wordmark applications and how they fit into your overall brand strategy. Most companies cover both their wordmark and logo. If you only have one of those applications, you should consider Markavo's "missing trademark application service."