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Our Trademark Attorneys Provide New York City Business With Trademark Filings and Brand Protection
Cohn Legal, PLLC is located in Midtown-Manhattan and specializes in trademark law. Our New York trademark practice is robust and comprehensive, providing the following trademark services: trademark search, trademark application, trademark registration, trademark renewal, trademark oppositions, trademark office action responses, and a variety of other legal services integral to the practice of trademark law.
Trademark Attorney Services for New York City Businesses
Trademarks are critically important because they represent and indeed protect a company’s most important asset; it’s identity.
Why are NYC customers willing to spend $5000 on a Gucci purse instead of $200 on a Guess purse that looks, for all intensive purposes, nearly identical? Because people feel a certain way when they walk around Manhattan with the Gucci name on their bag. This feeling, which is imbued by the Trademark, is the essence of trademark law and it is incumbent on all brand leaders to understand the importance of brand identity to the company’s broader success.
Our trademark lawyers are often asked with only a tiny bit of cheeky mischief, “Are you the best trademark attorneys in New York?” Naturally, we are expected to say yes (and humbly, yes indeed we are!) but this question actually runs much deeper than the coy client suspects. More precisely, what does it actually mean to be a top new york trademark lawyer? Does it mean possessing the greatest understanding of trademark law? Filing the largest number of trademarks in the United States Patent and Trademark Office (USPTO)? Recognizing a client’s potential trademark infringement of a competing mark and developing a strategy to overcome this barrier?
On a technical level, an excellent New York trademark attorney will adeptly navigate through questions of trademark eligibility, the applicability of the Polaroid-consumer confusion test (don’t steal other people’s names!) and drafting compelling responses to USPTO office actions after initial trademark applications have been rejected. However, perhaps most importantly, the best trademark attorney will have a sufficiently advanced understanding of trademark law to effectively design and protect the brand identity of the client’s company.
Your brand is everything; Guard it with your life.
Trademark Lawyers: Back to the Basics
What is a Trademark? Trademarks are what make you, you.
First and foremost, what is a trademark? A trademark is ultimately, a source identifier – when a consumer sees a given trademark on a good, it is immediately apparent to the consumer which company produced the good. A trademark may, therefore, be viewed as a company’s signature. The trademark may be a word, symbol, phrase, or graphic design and if branded properly, distinguishes the given product from those of the company’s competitors. Consider for the moment your internal experience of viewing a shoe with a Nike Swoosh on it. If you are a fan of Nike, seeing the Swoosh will immediately conjure up positive assumptions about the shoe; You will likely think that the shoe is of high quality, that it is expensive, that it is “cool”, that it is durable, and that it will be comfortable when you wear it. Is any of this true (short of it being expensive)? Well, it doesn’t really matter. What counts is that you believe all of these things to be true simply by virtue of the fact that it has the Nike Swoosh on it.
Fundamentals of Filing Trademarks for NYC Based Businesses
Can Anything be Trademarked?
A common misconception is that any “trademark” (name, logo, design) is trademarkable. This is in fact not the case.
In order for a term to be suitable for trademark registration, it must clearly indicate the source company of the goods/services. Simply, the word or phrase must be able to distinguish a product or service from other similar products or services by allowing a consumer to understand the brand behind the word or phrase. If the word/phrase/logo does not do the work of communicating something about the brand which is selling the product, it is not successfully functioning as a trademark.
When a USPTO trademark examining attorney reviews a trademark application, he or she will ask “how will the average person perceive this mark?”. Will the average person be more or less likely to purchase the goods to which the mark is affixed because of the reputation of brand behind the trademark? Will the average person even pay attention to the “brand”? Is the “trademark” now indistinguishable from the product (Kleenex vs tissues etc.)? The answers to these questions are not always obvious but the framework is quite clear.
Ultimately, Marks are eligible for obtaining trademark rights according to their distinctiveness – the more distinct the mark, the more trademarkable and the less distinct, the less trademarkable. Indeed, the “strength” of the given mark (which is in large part a function of its distinctiveness) will both determine the likelihood of obtaining trademark protection in the USPTO and the probability of effectively stopping a future competitor from using the mark. So, what does it mean for a mark to be “distinct”?
Distinct Trademarks Are Strong Trademarks
A cornerstone feature of trademark law is the legal doctrine of the Spectrum of Distinctiveness (and yes, the Best Trademark Attorney in New York should know this). The Spectrum of Distinctiveness is a conceptual tool, which allows the USPTO to evaluate a trademark’s uniqueness and individuality. At one end of the spectrum are fanciful marks (think NIKE – an otherwise made up and distinct word) and at the other end are “Generic” trademarks ( A lumber company calling itself “the lumber company). Fanciful marks are the most powerful of trademarks and are readily admissible to the USPTO while generic trademarks are the weakest and are inadmissible. Immediately next to Fanciful trademarks on this spectrum of distinctiveness are Arbitrary marks which are trademarks that use common, but otherwise irrelevant names to identify brand assets. For example, a Computer company calling itself “Apple”, despite the fact that its computers have nothing to do with the fruit, Apple, is a classic illustration of an Arbitrary mark and is eligible for trademark protection.
In the middle are marks that are “Suggestive” which are also trademarkable. These marks do not explicitly describe the good/service being sold but rather merely suggest the nature and/or purpose of the goods (“Bronzetinge for suntan lotion). However, as we move along the spectrum, marks that are “Descriptive” and quite literally describe the nature of the goods sold (ex. The Sweet Honey Company) ARE NOT trademarkable.
One can see that the difference between Descriptive and Suggestive is subtle but the standard boils down to the ease with which the consumer can tie the mark to the good. If the consumer must use his imagination to intuit the nature of the goods based on the name of the trademark, the trademark is considered to be suggestive, rather than descriptive, and therefore eligible for trademark protection. Understanding the nuances of the Spectrum of Distinctiveness is truly a hallmark feature of new york’s best trademark attorneys.
Quick List of Terms/Phrases Which Cannot be Trademarked
- Terms merely conveying information: Any term or phrase that simply provides information about the actual goods or services to be sold under the banner of the mark can’t be trademarked. Examples of terms that convey information are Sweet for candy, Long Lasting on dietary supplements, or Unlimited Data and Messaging for mobile phone services.
- Widely used messages: This category includes political, religious, social, or popular slogans, messages, or mottos. The following phrases would very likely be rejected by a trademark examining attorney if someone sought to trademark them: Occupy Wall Street, I Love New Yor, Think Big, Made in the USA, In God We Trust, etc.
- Religious quotes or passages: Wording quoted directly from the Bible, the Torah, the Quran, or any other religious text cannot be trademarked. These direct quotes are incapable of indicating the source of a good or service.
Federal Trademarks are only “Trademarks” Upon Use in Interstate Commerce
When you apply to register a trademark, the trademark must be “attached” to a specific good or service. Remember, if you are not selling anything or providing a bona fide service, your catchy name or slogan is not actually operating as a Trademark – it’s just a clever name or slogan. Thus, you cannot register a trademark without designating a specific product or service which is either already being sold in conjunction with the trademark or a product/service which you intend to sell in the future (more on this later). Moreover, selling the product/service in interstate commerce is not enough; you have to make a meaningful number of sales, rather than token sales, the customers across state lines. Thus, simply calling you sister across the country and selling her a single t-shirt would not satisfy the Use in Commerce requirement because not enough sales have been made.
You might very well be wondering, How does the USPTO Know if I’m actually selling any products or services? Well, when filing the trademark application, the USPTO requires the Applicant to provide examples of how their trademark will be used in commerce as part of their trademark application. These trademark examples are known as trademark Specimens of use, or simply, Specimens. Of course, depending on the product or service sold, the Applicant will have different “types of Specimens” available to demonstrate Use in commerce. If you’re not yet using your trademark in commerce and are filing an Intent-to-Use application, then you do not need to submit a specimen upfront however ultimately, you will need to submit a Statement of Use to the USPTO along with a specimen to complete your Registration. Specimens are also required when you are submitting your trademark maintenance documents to the USPTO. One idiosyncratic scenario where a specimen isn’t required occurs when the U.S. trademark application is based on existing foreign registrations.
The USPTO has strict guidelines as to what it will and will not accept as a specimen for Goods. In general, the USPTO will accept the following:
- Photographs of the mark displayed on the product itself or on the product packaging.
- Product labels displaying the trademark. For example, the label on the inside of a shirt (conversely, simply writing the trademark on the shirt will not satisfy the specimen requirement).
- A webpage showing the product, the trademark, and information on purchasing the product. Screenshots or hard copy printouts of the screen are acceptable as well.
- Instruction booklets, assembly instructions, or any other printed materials that are included the goods.
The specimen requirements for Services are slightly different because by definition, services are not tangible and therefore must be advertised through different marketing vehicles. Acceptable specimens for services include but are not limited to the following:
- Advertisements for the services
- Marketing materials
- Photographs of signage about the services
- Webpages that describe the service, display the logo, and include purchasing info
Critically, the trademarks that appear on your specimens must match, exactly, the trademark as it used applied for in your trademark application.This sounds simple enough, but it is not uncommon for an application to apply for the “plain-text” version of the trademark, while in the real world, the trademark is used as a stylized-logo. If there is too big of an incongruency between the mark as it is applied for in the application and the mark as it appears on the specimen, the examining attorney may very well reject the trademark application.
Another important point to understand is that each Class in a given trademark application must have a distinct and separate specimen to accompany it. Remember, the USPTO has created a classification system for all the goods and services that can be included in a trademark application which allows for up to 45 distinct categories of goods/services. If you were to submit a trademark application for a certain class of goods and a similar trademark existed for an entirely different class of goods, then your trademark might still be approved because trademarks are protected vis-a-vis the particular good/service sold under the banner of the mark; Similar trademarks may be distinguishable from each other if they are in different classes. If you are selling T-shirts, Computers, and Paintings under the banner of your trademark, you will need three separate classes and 3 separate Specimens. However, if you were to sell multiple items which are all covered under the same class, you only need to submit 1 specimen. For example, if you list 20 different clothing articles in your trademark application, you still only have to submit one specimen because all 20 products belong to Class 025. However, if you have multiple products or services across multiple classes, then you need to submit multiple specimens.
Can I Trademark My Creative Work?
Well, it depends frankly on what you mean by “Creative”. Remember, trademarks are fundamentally source identifiers and are purely designed to allow a consumer to understand the source-producer of the good/service to which the trademark is affixed. Therefore, trademarks are inappropriate as protective mechanisms for commonly thought of “creative works”, like movie scripts, songs, lyrics, and paintings. Instead, these forms of intellectual property are protected by Copyright law.
What about Trademarks for the Titles of Creative works? Certainly, J. K Rowling should have the right to trademark “Harry Potter”?! Fundamentally, there is a unique challenge when it comes to trademarking the titles of creative works such as films, books, DVDs, CDs, and other media and the United States Patent and Trademark Office (USPTO) will very often often reject trademark applications for creative works because they consider the desired trademark to be merely the “title of a single creative work.”
A single creative work is one in which the creative content remains static and unchanged; No sequels, future editions, enhancements, or updated versions are planned. For such countless books, films, CDs, and recorded songs, the titles of these “single creative works” are ineligible for trademark protection.
Why Can’t Titles of Single Creative Works Be Trademarked?
The reason that titles of single creative works can’t be trademarked is because the title of a creative work does not indicate the source. Remember, the main purpose of a trademark is to identify the source of the underlying product. Would a single book title tell the reader anything about the source-producer of the book? Not really. Single title’s tend to be stand alone items and do not reach the threshold of creating a brand association, in the same way for example that “Lord of The Rings….” tells a reader that they are about to read a book by Tolkein, in a different sort of way then the mere title, “The Fellowship of the Ring”.
Therefore, the creator or author of a creative work needs to show evidence that the title they wish to trademark is part of a series. For example, labeling a book or film as Part 1, Volume I, or First Edition, indicates that there are additional works under that title to come. If the creator can show evidence that they are intent on producing a series of creative works under the same title, then it can be considered for trademark approval.
Can I Publish a Creative Work Without a Trademark?
You can publish a book or any other creative work without trademark protection and of course it’s extremely common. However, you do want to make sure that you protect your intellectual property in some way before proceeding with publication. Consider the scenario; Imagine that you woke up tomorrow morning and someone else has applied for your exact same trademark with the USPTO before you got a chance to register your trademark. Would you be upset by this development? Would it harm your business? If this answer is no, then there’s no reason to rush into applying for a federal trademark. However, if the answer is yes, it is time to get started with the US Federal Trademark Application process. Contact one of our trademark attorneys who can give you advice on how to protect your title of a single creative work.
Must I Complete My Series of Creative Works Before Submitting a Trademark Application?
No, it’s not necessary to have completed your series of creative works before submitting a trademark application to the USPTO.
You may identify the creative works you wish to be branded with your desired trademark by filing an “intent-to-use” application with the USPTO. Then, when you have sufficient evidence that you are creating a series of work, you will be required to provide that evidence to the USPTO. Typically, producing at least one additional work in your series is evidence enough for a trademark examining attorney to that your creative work requires trademark protection. However, the author or creator must be sure that the content of the work changes significantly with each new version that’s produced.
Do Trademarks Last Forever?
Well, that’s up to you. Once you go through the process of registering your trademark with the United States Patent and Trademark Office (USPTO), a trademark can last forever, as long as it continues to be used in commerce.
Thus, trademarks are not designed to expire (unlike patents and copyrights) according to any set number of years but instead, they will last as long as you or your business continues to sell your products or services using the registered trademark. Remember, the purpose of a trademark is to serve as a source identifier; as long as the trademark continues to serve as a source identifier, consumers will continue to associate the the products attached to the mark with the brand identity of the trademark holder and therefore, the trademark may very well be immortal.
What is Trademark Maintenance?
While trademarks do not necessarily expire, there are steps you must take to prove to the USPTO that your trademark is still being used in commerce. This is what’s known as post-registration trademark maintenance. Failure to comply with post registration maintenance can result in your trademark being cancelled.
Here are the requirements for maintaining your trademark registration:
- Between the fifth and sixth anniversary of your mark’s registration date, you must submit form Section 8: Declaration of Use, a specimen, and associated fees to the USPTO.
- Between the ninth and tenth anniversary of your mark’s registration date, you must submit form Section 8 and form Section 9: Application for Renewal, and any associated fees to the USPTO.
- Every 10 years after your mark’s tenth anniversary date, you must submit forms Section 8, Section 9, and any associated fees to the USPTO.
Can My Trademark Accidentally Expire? A Common Error to Avoid
Trademark registration maintenance can become complex, especially if your registration includes many services or goods. Every time you complete your maintenance documents, you must ensure that the trademark is still being used on every item or service identified in the registration. Furthermore, you must submit an appropriate specimen for each good or service identified.
If you’ve stopped selling any goods or services under your mark, then be sure to delete them when filing your maintenance documents. Having an inaccurate record of what goods and services your mark is being used with can result in your entire trademark registration being cancelled. This is a fairly common error made by many small business owners, which has resulted in them spending additional time and money to get everything sorted out.
One way around this, some have argued, is to file separate trademark applications for each product or service you are using your trademark on. That way, any errors when filing maintenance documents for one specific product or service won’t impact the trademark registration on other products or services. Of course, this also creates a lot more paperwork and requires separate fees for each submission. This may not be an appropriate course of action for everyone. Consult with a trademark attorney before you take this approach.
Trademark Maintenance Should be Taken Seriously
Ultimately, ensuring you submit accurate trademark maintenance documents on time is up to you and the USPTO can be ruthless in enforcing its strict time-based deadlines. It can be a lot to keep track of, especially if you are a small business owner who is focused on growing your business and it is undoubtedly worthwhile to speak with a speak with a trademark attorney who can help make sure that you submit all of these documents on time and keep your trademark registration in good standing.
Someone is Using My Trademark. Now What?
Trademark law is challenging because of its subjectivity (does this mark looks too much like that mark?) and the devil is in the details.Trademark Registration can be easy with a an experienced Trademark Lawyer. Let’s dig in.
Well, How Similar is the Other Trademark?
Once the New York trademark attorney determines that the trademark is at least theoretically eligible for admission to the USPTO, the trademark lawyer must next ascertain whether or not the mark is already taken. In the event that it becomes apparent that the trademark is in part already in use (for a similar set of goods/services), a crafty trademark attorney will consider the most fundamental question of trademark law; is the applicant’s new mark so similar to the existing mark as to lead to consumer confusion and cause a buyer to believe the product (bearing the mark) belongs to the later applicant, rather than the initial trademark holder? In order to make this determination, the trademark attorney will employ the Polaroid Factor Test (famously used in Polaroid Corp. v. Polarad Elect).
Trademark Infringement Under the Polaroid Factor Test
The Polaroid factor test is used by Judges to determine whether or not trademark infringement has occurred and consists of eight points and while each factor is important, they do not all need to satisfied.
- The strength of the mark.
- The degree of similarity between the two marks.
- The proximity of the products/services.
- The likelihood that the prior owner will bridge the gap.
- Actual confusion.
- The defendant’s good faith in adopting its own mark.
- The quality of the defendant’s product.
- The sophistication of the buyers
Taken in its totality, the test signifies the meta-objective of ensuring a buyer will not experience confusion as to the source of the product bearing the mark. The more similar the prospective mark is to the original, the greater likelihood of confusion and therefore the less likely the mark may be registered.
What are the Penalties for Trademark Infringement?
Undoubtedly, ever situation is different but as a general matter, most “penalties” for trademark infringement, assuming the aggrieved party takes legal action, come in the form of Injunctions and Monetary compensations. An Injunction simply means that a court orders the offending party (assuming that the court agrees that the defendant did indeed do something wrong) to immediately stop using the infringing trademark. Monetary penalties can be frankly a bit trickier to unravel but under the Lanham Act, monetary remedies entail five different categories of relief to compensate for trademark infringement:
- The rewarding of the Infringer’s Profits to the Plaintiff
- The rewarding of the actual damages sustained by the trademark owner as a result of the infringement
- Royalty fees representing some amount due as a result of damages
- Attorneys fees
However, just because the Lanham Act provides each of these options as theoretically available to the Plaintiff, it is exceedingly rare that the Plaintiff would be awarded all of these options; Attorneys fees in particular is challenging to obtain and will only be granted under very rare circumstances. Indeed, Section 1117(a) states that, “…court in exceptional cases may award reasonable attorney fees to the prevailing party” but it does not explicitly define what those exceptional circumstances may look like. In the end, damages are available to plaintiffs when they can prove that there was indeed actual confusion and unjust enrichment by the infringing party. It is obviously therefore critical for aspiring trademark applicant’s to conduct a robust trademark search before deciding on a brand to mitigate against the possibility of infringing on another party’s trademark rights. These trademark searches and analyses must be done in the context of the Likelihood of Confusion test, asking not only if the prospective trademark already exists but also whether any marks that are too similar given the products/services sold are already in use.
Trademarks Services for New York City Businesses
- Trademark Search Services
- Trademark Application Filing
- Trademark Infringement Defense
- Trademark a Name
- Trademark a Phrase
- Trademark Cease and Desist Letters
- Trademark Office Action Response
- Trademark Abandonment
How Likely is it to Receive a Trademark Application Rejection?
Statistics show that about 40% of all trademark applications filed with the United States Patent and Trademark Office (USPTO) are approved on their first pass. No office actions, no amendments, no arguments.
What that means is that more than half of all trademark applications will be rejected outright or at least receive an initial office action. An office action is issued by the examining attorney and lists the reasons why your application is being rejected or questions. When you start trademark application process, you want to be prepared for the possibility that you will be among the 60% who don’t get approved right away.
Another reason that your application may not be approved is that it’s been suspended. That means the USPTO is waiting to see the outcome of applications for similar marks filed before yours. While your application hasn’t been outright rejected in this scenario, suspensions can still cause frustrating delays.
Can I Improve My Chances of Trademark Application Approval?
One way to improve the chances of your trademark application being approved is to perform a trademark clearance search prior to submitting your application. This includes searching the Federal Trademark record, state trademark registrations, common law sources, and Internet sources. If you find a mark that’s similar to your desired mark, then it’s best to assume the USPTO will reject it. You should choose a more unique trademark before submitting your application. You can contact a trademark attorney to help you conduct a clearance search and advise you on a trademark registration strategy. Similarly, if you’re submitting an application for a trademark that you think may be subject to refusal, then it would be wise to anticipate the refusal early in the process and plan accordingly. While it may be excessive to actually draft a rebuttal argument, it would be prudent to at least contemplate what sort of argument would be persuasive to defeat an office action. You may also want to have a second “backup” trademark ready to go in case you can’t overturn the examining attorney’s refusal.
Can I Improve My Chances of Application Approval After Initial Rejection?
If your initial trademark application was rejected, you still have the chance to go back to the examining attorney to argue the decision.
One of the best strategies is to reconsider the goods and services in your application. You can delete certain items from the list of identified goods and services, which may help the examining attorney more easily approve your application on the subsequent review.
If the examining attorney has only refused a certain set of goods and services (i.e., issued a partial refusal) consider filing a Request to Divide so the approved items in your application may move forward while you determine a strategy for the rejected items.
How Likely is it to Succeed in Overturning a Second Trademark Rejection?
The Trademark Trial and Appeal Board (TTAB) is the entity that reviews appeals of trademark rejections. The TTAB recently completed an analysis which revealed that when a trademark application was rejected by an examining attorney for the reason of likelihood of confusion, the TTAB upheld that decision on appeal more than 90% of the time. Furthermore, trademark applications that were rejected on the basis of being merely descriptive, the TTAB upheld that decision almost 94% of the time.
Now remember, appeals to the TTAB only occur after you’ve received a second rejection from the examining attorney. As you can see, your chances of successfully convincing the TTAB to overturn an examining attorney’s decision are very low. So, you want to consider the time and involved with appealing to the TTAB before proceeding.
Trademark Approvals are Ultimately at the Whim of the USPTO
You can never be 100% certainty that your trademark application will be approved. There may be times when you think your application is bulletproof and it gets rejected. Or, you might be expecting a rejection only to find out it’s been approved.
The best way to increase the likelihood of having your trademark application approved is to work with one of our trademark attorneys. We can guide you throughout the application process to give you the best chances of success.
When Can I Begin Using the TM Symbol? What About the ® Symbol?
The reality is the the TM symbol does not unfortunately carry too much weight, certainly not tantamount to the legal force which comes with the ® symbol. Basically, the TM symbol is designed only to communicate that the trademark carries certain “common law” trademark rights, or rights that are conferred by virtue of the fact that the trademark is used in commerce, but not yet registered. The ® symbol, conversely, communicates that the trademark holder has been granted a fully registered trademark from the United States Patent and Trademark Office (USPTO). The ® symbol can only be used when the mark is indeed federally registered. However, please be assured that the trademark still maintains powerful rights from the moment the trademark is filed with the trademark office and even if the applicant were to file the application on an Intent to Use basis, once the trademark is registered, its constructive use date back-stamps to the day that the application was filed. Thus, your rights to enforce your trademark do not begin at the later date of Registration but instead from the date that you submitted the application.
Why Trademark Registration Matters for New York City Businesses
New York City’s business sector is growing at an accelerated pace. That’s because entrepreneurs are eager to set up shops in this charming city that’s home to warm and friendly residents. However, one thing those pursuing new ventures need to keep in mind is to always register their trademarks with the USPTO.
Imagine the following: Jerry and Dana are college friends who love New York City-style barbecue. They spend a few months creating what they think is the perfect barbecue sauce and are eager to get it onto store shelves. They keep the name simple: JD’s Barbecue Sauce. They create a logo, a label for the bottles, and a website. What they forget to do, however, is register their trademark.
Within a few short months, Jerry and Dana are seeing some success. They have their sauce on the shelves of several local grocery stores, on the tables of local restaurants, and they are making sales across the country via their website.
Unfortunately, a barbecue sauce manufacturer out of Memphis, J&D Barbecue, finds out about Jerry and Dana’s sauce and sends a cease-and-desist letter to the two friends. J&D Barbecue registered their name more than 10 years ago and is well within their rights to ask Jerry and Dana to pull their product from store shelves and shut down their website. Now, the two friends must spend time and money creating a new brand.
If Jerry and Dana had partnered with a trademark attorney right from the beginning, that trademark attorney would have conducted a thorough trademark search. They would have known that a registered mark similar to the one they wanted was already out there.
Remember to always start the trademark registration process as soon as possible. If you have questions about trademark registration, then contact the attorneys at Cohn Legal for a no-cost trademark consultation.
**Cohn Legal, PLLC is deeply committed to the startup community in the New York Metropolitan Area and provides regular legal guidance and counsel to some of New York’s most exciting and promising emerging businesses.
Submit Your Trademark
Now in 4 Easy Steps
Complete the Trademark Registration Form.
Our IP Attorneys will run a search of your trademark in the USPTO.
We draft your TM Application and send it to you for your Review.
We File the Application with the USPTO.