What comes first? A trademark registration or use of the trademark in commerce by the owner who is seeking registration? In other words, can one obtain a federal trademark registration without first using the mark in commerce? The answer is no!
Trademark use is always a prerequisite to registration in the United States Patent and Trademark Office, with minor exceptions. Note that although registration is not a requirement for use, owning a trademark registration has several advantages, including the following:
- constructive notice to the public that you are the owner of the trademark in question
- a legal presumption that you are the owner and have all rights associated with ownership, including the right to prevent third-parties from using or registering confusingly similar trademarks
- Heightened damages in certain case
Before applying for a trademark registration, always consult with a trademark lawyer to determine whether the trademark is available for use and/or registration. By taking this simple step, you will save you and your company time, aggravation, and potential legal liability down the road.