Trademark rights arise from:
- Using the mark
- Registering a mark with the U.S. Patent and Trademark Office
Registration secures benefits beyond the rights acquired simply by using the mark. For example, the owner of a federal registration is presumed to be the owner of the mark and is entitled to use the mark nationwide.
A trademark confers two types of rights:
- Right to register
- Right to use
The right to register gives the first party, who either uses a mark in commerce or files an application with the U.S.
Patent and Trademark Office, the ultimate right to register that mark.
Only a court of law can render a decision about the right to use, especially when two parties have begun using similar marks without knowledge of each other and when neither has a federal registration. A federal registration can
provide significant advantages to a party involved in a court proceeding concerning the right to use.
Trademark rights can last indefinitely, unlike copyrights or patents, as long as the owner continues to use the mark to identify its goods or services. See the U.S. Patent and Trademark Office Web Site
for more information regarding the registration of a trademark or service mark.
When you are preparing to register a trademark, you should be aware that there are three types of registration applications:
- An applicant who has already begun using a mark in commerce may apply for a trademark based on that use (a "use" application).
- An applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an "intent to use" application).
- An applicant from outside the United States who, under certain international agreements, may apply for a trademark based on an application or registration in another country.
The ® (registered trademark) symbol may be used only when the mark is registered with the U.S. Patent and Trademark Office. It is improper to use this symbol at any time before the registration is issued.