Anaya Nolan
The United States has protected trademarks under state common law since colonial times, and individual states continue to offer their own trademark protections, complementing the federal trademark system. While federal registration is considered superior to state registration, state trademark laws allow for the registration of trademarks with the state's secretary of state or attorney general, and establish the grounds for trademark infringement at the state level.
| Characteristics | Values |
|---|---|
| Who can create trademark laws? | The U.S. Constitution grants Congress the power to create federal trademark law. However, state law also plays a role in trademark protection, with each state having its own secretary of state or attorney general to handle trademark registrations. |
| Basis of Congress' power to create federal trademark law | Congress' power to create federal trademark law is derived from the Commerce Clause. |
| Federal trademark protection | The Lanham Act defines federal trademark protection and trademark registration rules. |
| Federal trademark registration | Trademarks may be registered online with the United States Patent and Trademark Office (USPTO). The USPTO charges a $275 fee for online trademark applications, and the process takes about 6 months. |
| Federal trademark symbol | The ® symbol can be used to notify others of trademark rights, but only if the mark is registered at the federal level. |
| State trademark registration | Each state has its own process for trademark registration, typically through the state's secretary of state or attorney general. For example, in Texas, marks must already be in use in Texas commerce in connection with relevant goods or services before they can be registered. |
| State trademark symbol | There is no standard symbol to indicate state registration of a mark. |
| State trademark protection | State trademark law provides protection against trademark infringement at the state level and sets forth remedies for trademark holders who are infringed upon. |
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What You'll Learn
Federal vs state trademark registration
The United States has two types of trademark registrations: state and federal. The U.S. Constitution does not grant Congress power over trademark law, but Congress can create federal trademark law through the Commerce Clause. This means that for a trademark to receive Lanham Act protection, there must be some degree of interstate commerce present.
State trademarks are issued by a state office, and federal trademarks are issued by the United States Patent and Trademark Office (USPTO). State trademark registration is not required, but it does provide some benefits. Registering a trademark with a state is less expensive than registering with the USPTO, and it can usually be processed and approved more quickly. State trademark registration gives the owner the exclusive right to use the mark within the state's borders, and the ability to sue for infringement in state court. However, state registration also has drawbacks. It does not give the right to use the ® symbol, and it only protects the trademark in the state where it is registered.
Federal trademarks give the owner the exclusive right to use the registered trademark in connection with their goods and services throughout the United States. Federal trademarks are valid as long as the renewal fees are paid, with renewals due between the fifth and sixth years, and between the ninth and tenth years after registration. After the first ten years, renewals are due every ten years. Federal registration creates a legal presumption that the owner has the right to use the trademark nationwide for the class of goods or services identified in the registration. If a federal trademark was in use before a state trademark, the federal registrant can stop the state trademark owner from using the mark.
The process of registering a federal trademark is more involved and costly than registering a state trademark. The approval process for federal trademarks is strict and may involve multiple rounds of back-and-forth with the USPTO. A federal trademark application can take anywhere from several months to a few years to process. However, federal registration offers more benefits than state registration.
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State trademark infringement
While the US Constitution grants Congress the power to create federal trademark law, state trademark laws also exist and are beneficial in certain situations. State trademark laws protect trademarks within the borders of that state, while federal trademarks offer protection across the nation. State trademark registration is relatively quick, inexpensive, and less complex than federal registration. However, federal registration supersedes state registration, and federal trademarks are given a higher degree of protection in federal courts.
To avoid state trademark infringement, it is important to register your trademark with the appropriate state trademark office and ensure that you have the right to use the mark within that state. Registering a trademark with a state trademark office notifies others that you claim exclusive rights to the mark within that state. However, it is important to note that state trademark registration does not grant the right to use the ® symbol, which is reserved for federally registered trademarks.
If a state trademark infringement occurs, the trademark owner can take legal action by filing a lawsuit in state court. Trademark law in the United States is primarily enforced through private lawsuits, where the responsibility falls on the trademark owner to "police" their mark by stopping infringing uses. Failure to do so can result in the loss of protection. In some cases, criminal penalties may also apply, such as in the case of counterfeiting.
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Interstate commerce and trademark protection
The United States trademark law is primarily governed by the Lanham Act, which defines federal trademark protection and trademark registration rules. The Lanham Act gives a seller or producer the exclusive right to register a trademark and prevent competitors from using it. Trademark protection depends on use in commerce, not registration.
Interstate commerce, in this context, refers to any commerce that Congress can lawfully regulate. This typically includes commerce across state lines, commerce between the US and a US territory (such as Guam or Puerto Rico), commerce between the US and a foreign market, or commerce that has a substantial connection to interstate commerce. For example, a local travel agency that books interstate or international travel would qualify as interstate commerce under the Lanham Act.
To be considered "use in interstate commerce", there must be an actual sale or exchange of money for a good or service. The public must be exposed to the mark and choose to purchase the good or service offered under the trademark. Advertising alone does not constitute use in commerce. The good or service must be available for sale and delivery to the customer. Additionally, the use of the trademark must be lawful; for example, a pharmaceutical company selling a product without FDA approval may lose its trademark protection.
Trademarks may be registered online with the United States Patent and Trademark Office (USPTO). Registering a mark with the USPTO creates a legal presumption that the owner has the exclusive right to use the mark nationwide in connection with the relevant goods and services. The USPTO may also allow businesses distributing promotional gifts, free services, or free samples to register their trademarks.
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Trademark protection for different goods and services
Trademark protection is a complex issue in the United States, with both federal and state laws to consider. While the US Constitution does not grant Congress power over trademark law, federal trademark law is derived from the Commerce Clause. This means that interstate commerce must be present for a trademark to receive Lanham Act protection.
The Lanham Act defines federal trademark protection and trademark registration rules. It gives the seller or producer the exclusive right to register a trademark and prevent competitors from using it. However, trademark protection depends on use in commerce, not registration. A trademark is always connected to the specific goods or services sold to customers with that trademark. When registering a trademark, it is crucial to be specific about the goods or services it represents to clearly identify the scope of use. This includes correctly classifying the goods or services into the relevant international class, as outlined by the World Intellectual Property Organization (WIPO). There are currently 45 classes of goods and services, and each class requires an additional fee.
State law also adds its own protection, complementing and complicating the federal trademark system. For example, Texas law provides a statutory cause of action for infringing upon a registered mark, and it is a crime to counterfeit registered marks. However, registering a mark with the Texas Secretary of State does not give the right to use the registered trademark symbol, as this is only for federally registered marks.
Overall, trademark protection for goods and services in the US involves navigating both federal and state laws, with specific attention to the classification of goods or services and the correct registration procedures.
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Trademark rights and common law
The United States Constitution does not grant Congress power over trademark law, unlike copyright and patent law. Instead, Congress' authority to create federal trademark law is derived from the Commerce Clause. This means that for a trademark to receive Lanham Act protection, there must be some degree of interstate commerce present.
Common law trademark rights are automatic protections that arise from using a trademark in commerce. These rights are acquired just by using a trademark in your business and can be strengthened by registering your trademarks with the US Patent and Trademark Office (USPTO). Common law trademark rights are granted to the business that uses the trademark first and can only be enforced in the geographic area where the trademark is used. For example, if a business sells a product only in southern California, its common law trademark may prevent another business from selling the same type of product under a similar name in Los Angeles. However, it will not be able to prevent a competitor from setting up shop with the same name in San Francisco or elsewhere in northern California.
Common law trademarks are regionally limited and not as easily enforced as federal trademarks. They are permitted to use the ™ symbol, but there is no symbol to indicate state registration of a mark. While common law trademarks are easy to obtain, they can be difficult to enforce due to the lack of a public record of the trademark or when its use began. The only way to truly protect a common law trademark is by making it a federal registration.
In some cases, a common law trademark may prevail over a federal registration. This usually occurs when the common law trademark has an earlier, proven first-use date that can combat the federal trademark's rights in a certain region. Common law trademarks can also hinder a federal application if a proper clearance search was not performed before the application's submission to the USPTO.
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Frequently asked questions
A trademark can be any word, phrase, symbol, design, or combination of these that allows consumers to identify a company's goods or services.
Federal registration is superior to state registration. If a federally registered trademark was in use before a state registered trademark, the federal registrant can stop the state trademark owner from using the mark. If the state mark was in use first, the mark’s use may be restricted to the state where it was registered.
State trademark law generally provides for the registration of trademarks with the state’s secretary of state or attorney general. You can also register a trademark at the state level in Texas, for example, by filing with the Texas Secretary of State.
The Lanham Act defines federal trademark protection and trademark registration rules. It gives a seller or producer the exclusive right to "register" a trademark and to prevent competitors from using that trademark.
