Trademark rights are established by either:
- actually using the trademark in commerce or
- filing a proper application to register a trademark with the U.S. Patent and Trademark Office (USPTO) and using the trademark in commerce within a prescribed amount of time
Registering with the USPTO is not necessary to establish trademark rights. However, registering your trademark can help secure benefits, such as an official notice of your claim to the mark, evidence of ownership, the ability to sue infringers in federal court, a basis for obtaining registration in foreign countries and preventing the importation of infringing foreign goods.
There are two types of rights in a trademark: (1) the right to register and (2) the right to use. Generally, the first party who uses a trademark in commerce 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 trademark without knowledge of each other and without registering the trademark. In this case, only a court can decide who has the right of use. Federal registration does provide a significant advantage in court proceedings over usage rights.