How do I get a trademark?

Trademark rights can arise from the actual use of the mark or from filing for registration of the mark with the United States Patent Trademark Office (USPTO). Though federal registration is not required, it secures additional benefits over the mere use of the mark.

There are two related but distinct types of rights in a trademark: the right to register and the right to use. While the right to register is granted by the USPTO to the first party who either uses a mark in commerce or files an application, the right to use a mark can be more complicated to determine, and can only be decided by federal courts. This is particularly true when two parties began use of the same or similar marks without knowledge of one another, and when neither has federal registration. If the issue is litigated, a federal court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement. It should be noted that a federal registration can provide significant advantages to a party involved in trademark litigation.