Establishing Trademark Rights
Ownership rights of a trademark, in the United States, derives from either (1) actual use of the mark in trade and business, or (2) the filing of a proper intent to use (ITU) application to register a mark in the United States Patent and Trademark Office (PTO) to reserve the name for future adoption in business.
Although federal registration is technically not required to establish rights to a mark, obtaining a federal registration has many benefits. However, failing to register a mark may make it difficult, if not practically impossible, to protect.
First of all the benefits of federal trademark registration, is that the federal trademark registrant is presumed to be the owner of the mark for the goods and services specified in the registration. Additionally, a federal registration contains the date of first use. This date is presumed valid and acts as notice to a subsequent user with a date of first use after the application filing date that they would have less right to the mark in a dispute. Furthermore, when pursuing a trademark infringer, the trademark registrant is also entitled to additional damages provided for under the federal trademark statutes, which include attorney fees and punitive damages.
The right to register a mark and the right to use a mark are two very distinct types of rights. The USPTO ‘s authority is limited to determining only the right to register, while the ultimate right to use is determined in court. Therefore, only a private experienced trademark attorney can provide legal advice as to the rights of a mark.
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