In the United States, parties are not required to register their marks to obtain protectable rights. You can establish “common law” rights in a mark based solely on use of the mark in commerce, without a registration. However, owning a federal trademark registration on the Principal Register provides a number of significant advantages over common law rights alone, including:
- A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration (whereas a state registration only provides rights within the borders of that one state, and common law rights exist only for the specific area where the mark is used);
- Public notice of your claim of ownership of the mark;
- Listing in the USPTO’s online databases;
- The ability to record the U.S. registration with U.S. Customs and Border Protection to prevent importation of infringing foreign goods;
- The right to use the federal registration symbol “®”;
- The ability to bring an action concerning the mark in federal court; and
- The use of the U.S. registration as a basis to obtain registration in foreign countries.
Each time you use your mark, it is best to use a designation with it. If registered, use an ® after the mark. If not yet registered, use TM for goods or SM for services, to indicate that you have adopted this as a trademark or service mark, respectively, regardless of whether you have filed an application with the USPTO. You may only use the registration symbol with the mark on or in connection with the goods/services listed in the federal trademark registration. However, no specific requirements exist as to the precise use of the “®” symbol as to placement, e.g., whether used in a subscript or superscript manner. Note: Several foreign countries use “®” to indicate that a mark is registered in that country. Use of the symbol by the holder of a foreign registration may be proper.