Do You Need to Register a Trademark?

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By Daniel Taylor, Esq. on October 23, 2014 12:03 PM

A trademark is a word, phrase, symbol, or device -- such as a brand name or logo -- which identifies your business or product and distinguishes it from other similar businesses or products.

The owner of a trademark can enforce his trademark rights to prevent others from infringing upon it by using a similar name or selling the same goods or services under a different name. But how are those rights established?

Do business owners need to register a trademark in order to protect their trademark rights?

Common Law Trademark Rights

A trademark does not necessarily need to be registered with the United States Patent and Trademark Office for the owner of the trademark to enforce his trademark rights. Rather, trademark protections are granted as soon as a trademark is used in commerce.

Common law trademarks (for goods) often carry the symbol "TM"; common law service marks (for services, naturally) can carry the symbol "SM." These trademark rights extend to anywhere the trademark is used in commerce, meaning that if your business is strictly conducted locally, your common law trademark rights may not extend to other regions.

So Why Register a Trademark?

Choosing to register your trademark may provide several advantages for the enforcement of trademark rights. Among the benefits of registration are:

  • The legal presumption of exclusive rights to the trademark nationwide,
  • The ability to register with the U.S. Customs Service to prevent importation of foreign goods which may infringe on the trademark,
  • The ability to obtain trademark registration in foreign countries,
  • Notice of your ownership of the trademark to other business owners,
  • Use of the federal trademark registration symbol (the R inside a circle), and
  • The ability to bring an action regarding the trademark in federal court.

Registering your trademark can be done by filing a federal trademark application with the USPTO. Though the application process may take anywhere from several months to a year or more, in the meantime you will still be afforded common law trademark protections.

To learn more about trademarks, copyrights, and patents, check out FindLaw's section on Intellectual Property.

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