In the United States, trademark rights are initially acquired by use of the mark in commerce.  The first person to use a trademark can prevent others from later using a similar mark in a way which is likely to confuse consumers.  Trademarks not only prevent consumer confusion, but they also encourage investment in trademarks as a way of identifying products.

While trademark rights can be acquired merely by using the trademark, federal registration of a trademark provides substantial advantages:

            Nationwide coverage.  A federal trademark registration provides nationwide notice of trademark rights, even though the mark has only been used in one particular geographic area. State trademark registration only provides protection within that particular state, and common law protection based solely on use provides protection only in the geographic area where the mark was actually used. 

            ® marking.  An owner of a federally registered mark may give notice that the mark is registered by displaying an ® with the mark.  Absent such notice, profits and damages for trademark infringement may be unavailable.  15 U.S.C. § 1111.

            Evidence in infringement action.  In a trademark infringement action, a federal registration establishes validity of the mark and the registration, ownership of the mark, and the exclusive right to use the mark in commerce.  15 U.S.C. § 1116.  Absent the federal registration, the trademark owner plaintiff has the burden of proving validity, ownership, and exclusive rights.  Five years of continuous use of a mark after federal registration renders the mark "incontestable.”  For incontestable registrations, validity, ownership and exclusive rights are conclusively established by the registration.

            Term of protection.  While the initial term of federal trademark protection is ten years, each registration may be renewed for periods of ten years.  Therefore, trademark protection can last forever.

            State trademark registration.  State trademark registration is also available, but does not provide the level of protection of federal registration.  State trademark registration can be helpful when a company needs a quick registration on which to base a claim of state trademark infringement, for elevating a state counterfeiting claim from a misdemeanor to a felony, and to avoid the expense of federal trademark registration.  However, unless the trademark owner intends to limit distribution of its product to within a particular state, federal trademark registration will be more cost-effective than multiple state registrations.