TRADEMARK PROTECTION

The rights to trademarks, service marks and trade names are based on use and arise out of what is referred to as "common law" protection; that is, rights are established once public recognition begins. Registration is not required to have protectable rights, but is highly recommended. Both trademarks and service marks can be registered either on a state or federal level, but there is no registration process for trade names.

In order to start establishing trademark rights, the mark should be used as a proper adjective with the "TM" superscript. Similarly, service marks should be used with the "SM" superscript. Note that the ® (circle "R") symbol may not be used unless a federal registration is first obtained.

Trademarks and service marks can be registered at the state level if used in that state. However, if used in interstate commerce, federal registration is available.

Federal applications for registration fall into two categories: "use-based" and "intent-to-use". Traditionally, it was possible only to file a federal application if the mark was already being used. However, now an application can be filed if the applicant has a bona fide intent to use the mark in interstate commerce.