Trademarks in the USA are protected by state and Federal laws. Registering a trademark will give you as much protection from infringement lawsuits as possible. The primary Federal legislation is the Trademark or Lanham Act of 1946, and each state has its own trademark laws. Keep reading for essential information on trademarks in the United States.

International Trademarks 

The United States is party to several international trademark agreements:

A trademark registration or a pending application in one of the other participating countries can serve as the basis for protection in the United States. However, owning a foreign trademark registration is not enough to override a preliminary refusal of registration in the United States or to get a favorable verdict in an enforcement action against infringement in the United States.

The Parts of the Government that Regulate Trademark Law

The United States Patent and Trademark Office (USPTO) is responsible for examining and registering trademarks. You can save money on filing fees by applying online, and people can appeal the USPTO's decision to the Trademark Trial and Appeal Board or TTAB, a part of the USPTO. A decision by the TTAB can be appealed to a Federal court. State offices, usually secretaries of state, examine and register trademarks at the state level.

Guidelines for Trademarks

Ownership of a trademark is usually determined on a first-to-use basis. The owner of a distinctive, nonfunctional mark can get common law rights by using it in commerce. Those rights are enforceable in Federal and state courts because of the Lanham Act. Trademark applicants can get priority by filing an intent-to-use application.

A famous trademark will have more legal protection than a mark that's not famous. The owner of a famous mark can sue for dilution under Section 43(c) of the Lanham Act as well as trademark infringement. He or she can also stop the use of a trademark, even if it's for unrelated products or services.

Trademark Registration

Since trademark rights are established through use, registration isn't required, but it does offer lots of benefits. Registration comes with a legal presumption of the mark's validity and rights that go back to the filing date of the application. It's also a notice of the registrant's claim of ownership, and the owners of registered trademarks can use the trademark symbol and protect their marks in Federal court.

Any person or entity that uses a trademark or intends to use it can apply to register it. Registering your trademark in the United States can later be used as the basis for a foreign trademark application. You can register any distinctive, nonfunctional word, symbol, or drawing, including:

  • Shapes
  • Packaging
  • Slogans
  • Colors
  • Sounds
  • Fragrances
  • Flavors 
  • Symbols
  • Acronyms
  • Three-dimensional forms
  • Holograms

If a trademark isn't inherently distinctive, you can still register it with proof of acquired distinctiveness. Applications for collective membership marks should specify how applicants will regulate and control their use. They should also have information about the membership organization. A trademark could be refused registration if: 

  • The application doesn't comply with filing requirements
  • The mark is only descriptive
  • It's deceptive or inaccurate
  • It's likely to be confused with another registered trademark
  • It contains offensive material
  • It uses the flag, coat of arms, or another insignia of the United States or any other nation, city, or state
  • It uses the signature or image of a person without his or her consent

Unregistered Trademarks

Unregistered trademark use, also called common law use, protects you from infringement in the immediate area of use, not the entire United States. Section 43 of the Trademark or Lanham Act covers unregistered trademarks. However, they're not automatically valid like registered trademarks. To sue for trademark infringement without registration, the owners must prove that the trademark is valid. Owners of unregistered trademarks can use them with the designation TM for trademark or SM for service mark. That way, customers will know that your logo is trademarked.

If you need help with trademarks in the USA, you can post your legal need or post your job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.