You can USE a mark in commerce on the local, state or national level and develop some rights to a trademark within your geographic region of business. However, the tools for enforcement of your trademark will be more limited without federal registration.
Trademark Protection Requires Use on a Product or Service
It is very important to understand that no trademark rights can be claimed without actual use of a mark in commerce. It is wrong to assume that you own an idea for a trademark. Such ideas cannot be protected unless developed and used as a trademark in your brand, or expressed in the form of artwork or other form of expression that is qualified for copyright protection.
In the case of common law trademarks, you can use the symbols TM or SM to indicate your claim to ownership of a mark. However, you will not be able to use the registered trademark symbol “®” without filing a trademark application and getting your mark registered.
You Usually Should Register a Trademark
Registration of a trademark on a national authority’s official register confers many benefits. Once it is apparent that a trademark has monetary value to your business, then you should consider filing a trademark application to enhance your protection. The immediate need to file an application differ according to your circumstances.
In the United States, the benefits of filing a trademark application include the following:
- Registration provides constructive notice to the public and listing in the U.S. Patent and Trademark Office database. This reason alone is sufficient for registration, as it will deter many from choosing a confusing name and causing future conflicts. Without registration, it is much more difficult for others to identify your trademark among the masses of other businesses.
- Registration by filing a trademark application with the USPTO provides you with a legal presumption of ownership because the trademark has been evaluated and approved by a trademark examining attorney.
- Registration prevents you from encountering geographic restrictions to your state or locale by establishing your right to use the mark nationwide with the connected goods/services.
- Registration gives you greater ability to sue for infringement in federal court.
- Registration entitles you to use of the U.S. federal registration to obtain registration and protection in foreign countries.
- Registration gives you the ability to use U.S. customs to prevent importation of infringing goods from overseas.
- Registration enhances your potential for recovery of punitive damages and attorney fees if your mark is infringed and you must litigate.
- Registration makes it possible for your trademark to become incontestable as a valid registered federal trademark after five years.
- Registration of a trademark enhances domain name protection for website owners because of additional enforcement tools provided by domain registrars. In other words, you are better able to prevent others from cyber-squatting with respect to your trademark or using your reputation and trademark in a domain name to market competing products.
- Registration of a trademark gives you greater possible protection by search engines from other companies using your trademark for advertising.
Clark & Bellamy, P.C. recommends incorporating at least one word mark into your brand as a registered trademark. This will improve the durability and value of your trademark and business over time.