Gavin Howe
Trademarks can be registered at the state or federal level in the United States. Registering a trademark with the state is relatively quick and inexpensive, while federal registration is more complex and costly. State trademark registration provides protection within the borders of the state, whereas federal registration offers protection across the US and its territories. Federal registration supersedes state registration, and provides a basis for obtaining foreign trademark registrations. State registration creates a record of the date a mark was first used, which can be important in trademark infringement cases.
| Characteristics | Values |
|---|---|
| Registration body | United States Patent and Trademark Office (USPTO) or state registration |
| Registration symbol | ® for federal registration only |
| Registration process | Federal registration is complex and costly; state registration is quick and inexpensive |
| Protection | Federal registration provides protection across the US and its territories; state registration provides protection within the borders of the state |
| Additional protection | Federal registration provides a basis for filing in other countries; state registration provides additional protection in case of trademark infringement accusations |
| Search process | USPTO searches its database and that of registered Texas marks; it does not search state or county assumed name records, legal names of corporations, phone books, the internet, or any other "common law" usage of marks in commerce |
| Common law rights | Granted the moment a mark is used for commercial purposes; registration is not required |
| Priority | Determined by the date on which a mark was first used |
| Lawsuit | Can be filed in federal court only if the infringer lives in a different state and the amount in controversy is more than $75,000, or if the case depends on interpreting the Lanham Act or other federal law |
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What You'll Learn
State trademarks: protection and limitations
State trademarks offer protection for marks within the borders of the state in which they are registered. They are relatively quick and inexpensive to obtain, and they provide a filing date that can be important in trademark infringement disputes. This filing date serves as proof of when you began using your mark and can help you defend against accusations of trademark infringement. Additionally, state registration creates a public record of your trademark, which can deter others from infringing upon it.
State trademarks are particularly beneficial if you are a small business operating only within your state, as they offer a more affordable option compared to federal trademarks. They are also useful if you want to start using your mark as soon as possible, as you typically cannot apply for a state trademark until you are actively using it.
However, state trademarks have limitations. They do not provide nationwide protection, and a federal trademark can supersede a state trademark, restricting the use of the state mark to within its borders. State registration also does not guarantee that someone else does not already have a superior right to use the mark in commerce.
While state trademarks offer some protection, federal trademarks are more comprehensive. Federal registration provides protection throughout the United States and its possessions and territories, and it serves as a basis for obtaining foreign trademark registrations. Additionally, federal trademarks can be used to prevent the importation of infringing products.
In conclusion, state trademarks offer a quicker and more affordable option for businesses operating solely within their state. They provide some protection and can be a good starting point for small businesses. However, they have limitations regarding geographic scope and potential conflicts with federal trademarks. For broader protection, federal trademarks are more suitable, especially for businesses with plans to expand beyond their home state or seek international trademark protection.
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Federal trademarks: benefits and drawbacks
Federal trademarks offer protection across the United States and its territories, whereas state trademarks are limited to the borders of the state in which they are registered. Registering a federal trademark can help prevent the importation of products from other countries that would infringe upon your trademark. This can be done by registering with the U.S. Customs and Border Protection Service. Additionally, federal registration serves as a notification of ownership and use, creating a public record that may deter others from infringing upon the trademark. It also provides a basis for obtaining foreign trademark registrations, such as through the Madrid Protocol.
The process of obtaining a federal trademark is more complex and costly compared to state registration. It may involve multiple rounds of communication with the USPTO, resulting in additional fees and a longer processing time. For small businesses or those with limited funds, state registration may be a more viable option as it is relatively quick and inexpensive.
State registration creates a record of the date a mark was first used, which can be crucial in defending against accusations of trademark infringement. It also allows for remedies beyond those specified in the Federal Lanham Act, and some states have laws that work alongside federal trademark laws to help prevent unfair competition.
It is important to note that federal trademarks supersede state trademarks. If a federal trademark was registered before a state trademark, the federal registrant can prevent the state trademark owner from using the mark. Therefore, it is advisable to conduct a thorough trademark search before proceeding with registration.
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Common law trademark rights
In the United States, trademark rights are established by the actual use of the mark in commerce. This is known as common law, which indicates that trademark rights are developed through use and are not governed by statute. Common law trademark rights are therefore established under a judicially created scheme of rights governed by state law.
While federal registration with the United States Patent and Trademark Office (USPTO) is not required to establish common law rights, it is almost always recommended and gives trademark owners substantial additional rights. These include protection throughout the country, the right to use the symbol ® to denote a registered trademark, and the right to sue for damages if someone infringes on the trademark.
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International trademark law
There are two primary methods for obtaining international trademark protection:
- Direct Application: You can apply for trademark registration directly with individual countries by filing an application with their respective trademark offices. This approach allows for customisation and a tailored strategy for each jurisdiction.
- Madrid System: The Madrid System, facilitated by the World Intellectual Property Organization (WIPO), offers a streamlined process. Through a single application and payment process, trademark owners can seek protection in over 120 countries and regional intellectual property offices. This system is particularly convenient and efficient for those seeking protection in multiple jurisdictions.
It is worth noting that some jurisdictions have agreements in place that provide for reciprocal trademark rights. For example, the Andean Pact, which includes Bolivia, Colombia, Ecuador, and Peru, allows for certain reciprocal rights upon the request of the trademark owner. Similarly, the European Union Trade Mark (EUTM) provides unified protection throughout the EU with a single application.
When considering international trademark protection, it is advisable to seek legal expertise to navigate the complexities of different jurisdictions and their specific requirements.
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Trademark lawsuits
Trademarks can be protected both domestically and internationally. In the US, the federal government holds the power to regulate trademarks, and businesses can register their trademarks with the United States Patent and Trademark Office (USPTO). Registering a trademark with the USPTO gives the business the exclusive right to use the mark nationwide. However, trademark regulation is not limited to the federal level, and states may also regulate trademarks. For instance, Texas law provides a statutory cause of action for infringing upon a registered mark.
Registering a trademark is important for businesses as it protects their intellectual property and prevents competitors from using confusingly similar names, logos, or designs. Trademark lawsuits often arise when a trademark owner believes that another party is infringing on their trademark and causing confusion in the marketplace. For example, multinational conglomerate 3M filed a lawsuit against Changzhou Huawei Advanced Material Co Ltd for using the name "3N" on their products. 3M claimed that the use of "3N" was designed to mislead consumers and infringe on their trademark, and the verdict was in their favour.
Another example of a trademark lawsuit is Starbucks vs New York's Coffee Culture Cafe. Starbucks filed a lawsuit against Coffee Culture Cafe for launching a drink called "Freddocino", which Starbucks claimed was similar to their trademarked drink, the "Frappucino". Starbucks also alleged that Coffee Culture Cafe had created deceptive packaging to make it appear that "Freddocino" was a trademarked term. The case was settled out of court, with Coffee Culture Cafe agreeing to stop using the name "Freddocino".
To avoid trademark lawsuits, businesses should conduct thorough searches to ensure their trademarks do not infringe on existing ones. Trademark attorneys can assist in this process by helping to identify the right search terms and understanding the search results. Additionally, businesses should monitor their intellectual property and act promptly if they believe their trademarks are being infringed upon.
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Frequently asked questions
Federal trademark registration provides protection over a mark throughout the United States and its possessions and territories. State trademark registration provides protection within the borders of the state in which it is registered.
State trademark registration is relatively quick and inexpensive compared to federal registration. Registering a trademark with the state creates a record of the date that you began using your mark, which can be important if you are accused of trademark infringement.
Federal registration supersedes 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.
You can register a trademark with your state by applying to the relevant state agency.
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