Acquiring Trademark Rights

Federal registration is not required to establish rights in a trademark. Rights arise from actual use of a mark. Generally, the first to either use a mark in commerce or file an application with the U.S. Patent and Trademark Office (USPTO) has the ultimate right to use and registration. However, once registered, the trademark owner is provided additional rights.

For example, using a mark without registering it will provide rights to that mark only within its established trading area. Once registered, the owner would have exclusive rights on a nationwide basis.

Use in Commerce

A trademark application can be filed based on either actual use or intent to use the mark in commerce. Use in commerce means a real use of the mark in the ordinary course of trade, in interstate commerce. For an application based on actual use, you must indicate what products the mark appears on:

For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.

For services: the mark must be used or displayed in the sale or advertising of the services and the services must be rendered in commerce.

Intent to Use

If you have not yet used the mark but plan to do so in the future - you may file based on a good faith intention to use the mark in commerce. You do not have to use the mark before you file your application. You are "reserving" that mark for future use and must then either use the mark in commerce or file for an extension. Up to five extensions of six months are allowed so you can delay using the mark in commerce for up to three years after the examination process is complete.

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