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Once a person or business starts using a mark in commerce, they technically have what is called a common law trademark; the protection afforded to this right is extremely limited. Hence, a common law trademark is only enforceable in the geographic area where the mark is used. In most instances, it is hard to enforce common law rights because it is hard to show when use of the mark began. Therefore, it is important for owners of marks to understand the importance of obtaining registered trademark(s) for their brand(s). They must decide whether they need to obtain a state or federal trademark registration. In this article, I will discuss the difference between these two and what can happen if a trademark registration is not obtained.

In general, state trademarks are quick and easy to obtain, while federal trademarks are more costly and complex. Nevertheless, federal trademarks offer way more protection than do state trademarks. State trademarks protect a mark only in the registered state(s), meanwhile a federal trademark protects the mark(s) nationwide and potentially can be used to obtain international trademarks through the WIPO World Intellectual Property Organization. Furthermore, the owner of a state trademark registration cannot use the registered symbol ® next to its mark to put others on notice. The registrant can only put either a TM for a trademark or SM for a service mark next to its mark. Hence, when a federal registration is pending, the applicant can put either one of these symbols next to its mark and once the federal trademark obtains registration, the applicant can put the registered symbol ® next to it.

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