Key Takeaways

  • An American trademark provides nationwide legal protection for distinctive brand identifiers such as names, logos, and symbols registered with the U.S. Patent and Trademark Office (USPTO).
  • Priority of use plays a major role in American trademark law—“first use in commerce” typically determines ownership rights.
  • U.S. trademark law protects both functional and aesthetic elements of a mark, provided the design is not deemed functional in a utilitarian sense.
  • Modern trademark litigation often focuses on “consumer confusion” and “trademark injury,” which courts use to assess infringement.
  • Maintaining a federal registration requires periodic renewals and continuous commercial use of the mark.

U.S. registered trademarks give mark holders important protections for their products so that other parties can't infringe on their rights for financial gain. Once you hold a trademark, you can use it in association with goods that you provide, which will build up trust and goodwill in your brand.

How to Register a Trademark

Anyone who wants to register a trademark applies to the United States Patent and Trademark Office (USPTO). The USPTO reviews applications and then makes a decision to register a trademark if the mark meets specific requirements. Trademark holders have rights to their registered mark. You have several advantages when you own a trademark: 

  • Public notice that you are the owner. 
  • Exclusive rights to use your mark in connection with the goods or services it's associated with. 
  • The legal right to bring an action against an infringing party. 
  • You can use your U.S. registration to get registration in other countries. 
  • Your registration can be used to prevent the importation of foreign products that infringe on your trademark.

When you claim rights to a mark, you can use the symbol "TM" (trademark) or "SM" (service mark) so that third parties are aware of your ownership claim. You can use either symbol whether or not you've applied for a mark with the USPTO. However, you cannot use the symbol designating federal registration, the "®" symbol, until your mark is actually registered with the USPTO. You can't use it even while your application is pending.

Once your mark is registered, you can only use it for the goods or services that it's registered for. Most applicants in the U.S. plan to use their mark in the course of commerce. This includes interstate commerce as well as commerce between foreign countries and the U.S.

You should conduct a trademark search before applying to make sure no one else has claim to your mark. If your mark contains a design element, you'll need a design code to search for the same or similar marks. You can search for free using the trademark search database, also known as TESS.

You can file an application online using the TEAS system, or Trademark Electronic Application System. You'll be able to submit it directly to the USPTO.

Understanding Priority and Rights in American Trademarks

In American trademark law, priority of use determines who owns the right to a mark. Generally, the first party to use a mark in commerce acquires “common law” rights in the geographic area where it operates. However, registration with the U.S. Patent and Trademark Office (USPTO) expands these rights nationwide, creating a presumption of validity and ownership.

Trademark priority is considered “frozen” as of the application or filing date. This means that later filers, even if they begin using the mark, cannot override the earlier applicant’s rights. This concept protects businesses that invest early in developing a brand identity. To maintain these protections, the registrant must continue using the mark in commerce—disuse can lead to abandonment of rights.

It’s also important to distinguish between intent-to-use and use-in-commerce applications. An intent-to-use application reserves rights for future use, but full registration will only issue after proof of actual use is submitted.

Registering a Trademark for a Company Name

It's easy to register a trademark for a company name. It may take less than 90 minutes to file online, and many people don't need a lawyer to do this. The easiest way to register is to visit the USPTO website.

Be sure to conduct a trademark search first before registering, using TESS. You need to check if another entity has registered the same or similar mark that you wish to use for your goods or services in the same category.

Protection for a mark is typically given to the first party who uses it in the area it conducts business. However, if the mark is registered by another entity, even if you used it first, your application will be rejected. You might then need to hire a lawyer if you want to proceed with using that mark.

Registering for a trademark online costs anywhere from $275 to $325. You'll have to provide the following information when you apply: 

  • The category of services or goods your mark is used for  
  • The initial date of the mark's use in commerce 
  • Any design component in your mark

If you run an online business, you should probably not include your web extension as part of the mark registration (i.e., .com or .net) unless you plan to register a mark with the extension as well as without it.

You'll probably get a decision for your application six months or so after filing. One of the reasons applications are rejected is a close similarity to an existing registered mark, as marks that are “confusingly similar” are likely to confuse the average consumer as to their source.

If you feel you have a product that's valuable enough to protect, it's important to find out as much as you can about the trademark process. Not only do you want to avoid the risk of infringing on someone else's mark, you want to get protection for your creation before another party does.

Maintaining and Enforcing an American Trademark

Once a trademark is registered, the owner must actively maintain it to retain protection. This includes:

  • Filing maintenance documents with the USPTO between the fifth and sixth year after registration (Sections 8 and 15 declarations).
  • Renewing every ten years to keep the registration active.
  • Monitoring for unauthorized use of similar marks.

Trademark enforcement can involve sending cease-and-desist letters, filing opposition proceedings during the USPTO application process, or pursuing infringement litigation in federal court. Vigilance is critical—failure to enforce can weaken a brand’s rights and allow others to claim coexistence or abandonment.

For complex enforcement or international protection strategies, businesses can consult a trademark attorney. You can find experienced trademark lawyers on UpCounsel’s marketplace to help navigate registration, maintenance, and enforcement.

Trademark Infringement and Injury Under U.S. Law

Trademark infringement occurs when another party’s use of a mark is likely to cause consumer confusion about the source of goods or services. In modern trademark disputes, U.S. courts often assess not only confusion but also whether there is a trademark injury—a tangible harm to brand reputation, goodwill, or sales.

The Harvard Law Review notes that courts increasingly require proof of concrete injury in trademark cases to ensure fairness and limit overreach in enforcement. For example, not every use of a similar mark constitutes infringement; there must be evidence of economic or reputational harm.

Businesses seeking to enforce their American trademarks must be prepared to show how an infringing mark affects consumer perception or causes actual loss. Evidence may include customer confusion surveys, lost sales data, or examples of misdirected consumer inquiries.

Protectable Features and Trademark Functionality

Not every design, logo, or product feature can be protected under American trademark law. The USPTO and courts apply the “functionality doctrine,” which excludes utilitarian features from protection. A mark that provides a functional advantage—such as a handle shape that improves grip—cannot be trademarked because it would unfairly restrict competition.

However, nonfunctional aesthetic designs—such as distinctive color schemes, packaging, or patterns—may qualify if they help consumers identify the brand rather than serve a practical purpose. For example, the unique robin’s-egg blue used by Tiffany & Co. or the red soles of Christian Louboutin shoes are protected under trademark law because they are distinctive brand identifiers rather than functional attributes.

When applying for an American trademark that involves product design or trade dress, applicants must provide evidence that consumers associate the design with the brand itself. This often involves showing extensive marketing, sales, or consumer recognition.

Frequently Asked Questions

  1. What qualifies as an American trademark?
    An American trademark is any word, phrase, design, or symbol registered with the USPTO that identifies and distinguishes a company’s goods or services nationwide.
  2. How is priority determined in U.S. trademark law?
    Priority is usually based on the first use of the mark in commerce, though a federal application can secure nationwide priority from the filing date.
  3. Can I trademark a product’s design or color?
    Yes, if it’s nonfunctional and consumers recognize it as identifying your brand—like Tiffany’s blue boxes or Coca-Cola’s bottle shape.
  4. What is a “trademark injury”?
    Trademark injury refers to the economic or reputational harm caused when another party’s use of a similar mark confuses consumers or damages your brand’s goodwill.
  5. How long does an American trademark last?
    A trademark can last indefinitely, provided the owner continues to use it in commerce and files timely renewal documents with the USPTO.

If you need help with trademark registration, you can post your legal need 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, Menlo Ventures, and Airbnb.