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Trade Marks in the United States

20 May 2016

Trade mark rights in the United States arise from use of a trade mark, not registration and therefore a trade mark registration for a business, brand or product name, a logo, slogan or other trade mark provides a business with the most effective and least expensive way to prove trade mark rights in the United States.

A registration also acts as a public record of your trade mark, and places other possible users of the same or confusingly similar marks that you already holds rights in the trade mark throughout all fifty states. Whilst registration is not mandatory in the United States, registration is highly recommended; proving the existence of unregistered rights in your trade mark is difficult, very expensive, and at best, can show rights only in those States where you can show you have actively used the trade mark.

Registration acts as prima facie proof of the Proprietor’s entitlement to the trade mark. If a third party believes that it has a better right to a trade mark than the registered owner, the third party will have to apply to the United States Trademark Trial and Appeal Board (“TTAB”) to have the registration cancelled, which can be a long and expensive procedure, with a number of procedural and evidential hurdles to overcome.

The indicia of federal registration, ®, indicates to the world at large that the trade mark has achieved registration and accordingly, the trade mark will be protected under the United States Lanham Act of 1946. If a trade mark has not been registered, use of the ® marking constitutes false marking and can jeopardize enforcement of trade mark rights.

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