Each area of intellectual property presents unique challenges with respect to obtaining the relevant legal rights. In order to obtain trademark rights, one need only use a mark in commerce, and although it has benefits to be discussed below, registration is not required. Furthermore, the use in commerce requirement is interpreted somewhat loosely, and as a result, quasi-commercial activities such as advertising, promotional activities, or even an Internet presence might be construed to satisfy the use in commerce requirement under state and/or federal law. Because trademark is a creature of both state common law as well as federal statute, trademark rights can be obtained under either body of law or both.

Registrations on both the state level and the federal level will occur in one or several classes, which are organized by the type of product or service being offered in association with the mark. Protection thus extends only to those classes in which a registration has been obtained. On the state level, one can obtain a state trademark registration, which typically must be filed with the Department of State. While this state trademark registration process may be substantially cheaper than a federal registration, and may be better than obtaining no registration at all, few benefits are afforded by obtaining such rights. Perhaps the only major advantage is the ability to claim that future infringers were on constructive notice as to your mark, given that it was listed on the state’s publicly available trademark register. That said, this constructive notice may not extend beyond the geographic borders of the state; thus, parties using the same mark in commerce with state registrations in different states and no federal registrations may geographically limit each other to their respective traditional business areas.

Federal trademark rights, on the other hand, must be obtained through the filing of an application with the USPTO, along with the necessary registration fees, specimens of use, and the requisite affidavits. All of these materials can be uploaded and filed through the Trademark Electronic Application System (TEAS), but can also be filed hard copy with the USPTO. Keep in mind, it is cheaper to file a “cost-plus” application with the USPTO using TEAS than to file via hard copy. Applicants may also be able to register a mark on the supplemental register. An applicant might do this in order to use the registered ® symbol when the mark is used with the registered products or services, or to be able to block later-filed applications for related goods sold under confusingly similar marks. Finally, applicants that have not yet satisfied the use in commerce requirement may file an Intent-to-Use (ITU) Application, where the applicant may obtain his priority date up to six months prior to the first use of the mark in commerce.

In short, there are a number of mechanisms for obtaining trademark rights on the state and federal level, all of which start with, or involve a use of the mark in commerce.