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Trademarks
Trademark rights are established by either:
- actually using the mark or
- filing a proper application to register a mark with the U.S. Patent and Trademark Office (PTO).
Registering with the PTO is not necessary for establishing trademark rights. However, registering your mark can help secure benefits, such as an official notice of your claim to the mark, evidence of ownership, the ability to invoke federal court jurisdiction, a basis for obtaining registration in foreign countries and preventing the importation of infringing foreign goods.
There are two types of rights in a mark: (1) the right to register and (2) the right to use. Generally, the first party who either uses a mark in commerce or files an application with the PTO has the ultimate right to register. The right of use can be more difficult to determine. This is especially true when two parties begin using a similar mark without knowledge of each other and without registering the mark. In this case, only a court can decide who has the right of use. Federal registration does provide a significant advantage in court proceedings if you find someone is using your trademark.
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