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.