Trademarks do not have to be registered in order to be valid. The person who uses a mark in commerce first obtains a trademark on that mark. This mark indicates where a good or service came from. It shows the source. The person who obtains a trademark on a mark also obtains the right to prevent others from using that mark in commerce.
Your Rights through Trademark
Additionally, the person who obtains the trademark also obtains the right to prevent others from using marks that are so similar to the trademark that others may be confused about where the good or service came from. Simply stated, if I have a trademark I have a right to prevent you from using a mark so similar that others may confuse your product for mine. I create a name and a reputation for my product and it isn’t fair to me that you use a mark so similar that you confuse people and make them think your product is my product.
Whether a mark is registered or not, the above is true. However, registration of trademarks serves an important purpose. When a person registers his or her trademark, he or she puts the world on notice that this particular mark belongs to him or her, and that using that mark, or a confusingly similar one, violates his or her rights to the mark. One place a trademark may be registered is with the United States Patent and Trademark Office (“USPTO”).
Benefits of Trademark Registration
When a person registers his or her trademark, the registration is evidence that that person has the exclusive right to use that mark. The person is presumed to own the exclusive right to use that mark. Unless another person puts forth more compelling evidence to dispute this evidence, this presumption stands.
Another person may be able to prove a case against a person with a registered trademark, but it will be much more difficult. When one party has registered his or her trademark, the parties do not start off on a level playing field. The party with the registered mark begins ahead and it is up to the other party to prove otherwise.
Proof that a trademark is invalid is a defense to a claim of trademark infringement. However, if the trademark was registered, it is up to the other party to prove the trademark is invalid. It is not up to the party with the registered trademark to prove that the trademark is valid. If the trademark is unregistered, however, then it is up to the party with the unregistered trademark to prove it is valid, rather than the other way around.
Once a person has registered a trademark with the USPTO, the person should use the registration symbol, and “R” with a circle around it, when using the trademark, to give others notice of its federal registration.
A person may also record a registered trademark with the Bureau of Customs. This adds protection against goods with the same or similar mark being imported.