Definition
A trademark is a word, name, symbol, logo, slogan, or other identifier used to distinguish the goods or services of one party from those of others and to indicate their source. Trademarks protect brand identity and help consumers know who stands behind a product. They are protected under both federal law (primarily the Lanham Act) and state common law, and rights generally arise from actual use of the mark in commerce.
Legal Meaning
The essential function of a trademark is to identify the source of goods or services. When you see a familiar logo or brand name, the trademark tells you who made the product and signals a consistent level of quality you associate with that brand. A mark used to identify services rather than goods is technically a "service mark," but the legal principles are essentially identical, and the word "trademark" is commonly used for both.
Trademark protection in the United States operates on two levels. Federal protection comes from the Lanham Act and is administered by the U.S. Patent and Trademark Office (USPTO). At the same time, common-law trademark rights arise automatically from using a mark in commerce, even without any registration — but those common-law rights are generally limited to the geographic area where the mark is actually used. Because trademark is governed substantially by federal law, federal registration provides the strongest and broadest protection.
Not every word or symbol can function as a trademark. Marks are evaluated on a spectrum of distinctiveness. Fanciful marks (invented words), arbitrary marks (common words used in an unrelated context), and suggestive marks are inherently distinctive and readily protectable. Descriptive marks are protectable only if they acquire "secondary meaning" — consumer association with a single source — and generic terms (the common name for a product) can never be trademarks. A strong, distinctive mark is easier to register and to enforce.
Key Points
- A trademark identifies the source of goods or services and protects brand identity
- It is protected under both federal law (the Lanham Act) and state common law
- Rights generally arise from actual use of the mark in commerce, not from registration alone
- Common-law rights are limited to the geographic area of use; federal registration is nationwide
- The USPTO administers federal trademark registration
- The ™ symbol marks any claimed trademark; the ® symbol is only for federally registered marks
- Distinctive marks are protectable; generic terms can never be trademarks
- A trademark can last indefinitely if it stays in use and is properly maintained
Real-World Example
A bakery in Portland opens under the name "Sunrise Loaf" and uses the name and a sunrise logo on its signage, bags, and website. Through this use in commerce, the bakery acquires common-law trademark rights in the Portland area — even without filing anything. It marks its name with a ™ symbol to signal its claim.
Two years later, the bakery wants to franchise nationally. To secure rights beyond Portland and gain stronger enforcement tools, it applies to register "Sunrise Loaf" with the USPTO. Once the federal registration issues, it can use the ® symbol and enjoys nationwide rights, a legal presumption of ownership, and the ability to stop a confusingly similar bakery from opening in another state.
Common-Law vs. Federally Registered Trademarks
| Feature | Common-Law Trademark | Federal Registration (USPTO) |
|---|---|---|
| How rights arise | Automatically from use in commerce | From registration based on use or intent to use |
| Geographic scope | Limited to area of actual use | Nationwide |
| Symbol | ™ (or SM for services) | ® once registered |
| Presumption of validity | None; must prove rights | Legal presumption of ownership and validity |
| Cost and process | Free, no filing | Application, fees, and examination |
| Enforcement strength | Weaker, locally limited | Stronger, with access to federal remedies |
Registration, Symbols, and Infringement
Understanding how registration, symbols, and enforcement work together is key to protecting a brand.
USPTO Registration
Federal registration is obtained by filing an application with the USPTO, either based on actual use of the mark in commerce or a bona fide intent to use it. The application is examined, published for opposition, and, if no successful objection is raised, registered. Registration provides nationwide constructive notice of the owner's claim, a presumption of ownership and validity, and the ability to use federal courts and remedies.
™ vs. ®
The ™ symbol (and SM for services) may be used with any mark to assert trademark rights, including unregistered, common-law marks. The ® symbol may be used only with a mark that is actually registered with the USPTO. Using the ® symbol on an unregistered mark is improper and can undermine an enforcement action.
Infringement and Dilution
Infringement occurs when another party uses an identical or confusingly similar mark in a way likely to cause consumer confusion about the source of goods or services. Courts weigh factors such as the similarity of the marks, the relatedness of the goods, the strength of the senior mark, and evidence of actual confusion. Famous marks may also be protected against "dilution" — uses that blur or tarnish the mark even without confusion. Remedies can include injunctions and monetary damages.
Related Terms
Protecting Your Brand?
A trademark attorney can search, register, and enforce your marks across the country
Explore Business LawWhen You Need a Lawyer
Trademark selection, clearance, and enforcement involve nuanced judgments that benefit from professional help. You should consult a trademark attorney when launching a brand, expanding to new markets, or dealing with a potential conflict. A lawyer can:
- Conduct a clearance search to confirm your mark is available to use and register
- Prepare and prosecute a federal trademark application with the USPTO
- Advise on proper use of the ™ and ® symbols
- Send or respond to cease-and-desist letters and handle oppositions
- Pursue or defend trademark infringement and dilution claims
Because brand value can be substantial, securing rights early is wise. Trademarks are one piece of a larger picture; see our entry on intellectual property, and review our guide to understanding legal fees before hiring counsel.
Frequently Asked Questions
What is a trademark?
A trademark is a word, name, symbol, logo, slogan, or other identifier used to distinguish the goods or services of one business from those of others. Its core function is to indicate the source of a product or service so consumers can identify and rely on a particular brand. A mark used for services is sometimes called a service mark, but the rules are essentially the same.
Do you have to register a trademark to have rights?
No. In the United States, trademark rights arise from actually using a mark in commerce, so you can have common-law rights without registration. However, those rights are generally limited to the geographic area where you use the mark. Registering with the U.S. Patent and Trademark Office provides nationwide rights, a legal presumption of ownership and validity, and other important enforcement advantages.
What is the difference between the TM and the registered trademark symbols?
The ™ symbol can be used with any mark to claim trademark rights, including unregistered common-law marks, and the SM symbol is used the same way for services. The ® symbol may be used only after a mark is federally registered with the U.S. Patent and Trademark Office. Using the registered symbol on an unregistered mark is improper and can create legal problems.
How long does a trademark last?
Unlike copyrights and patents, a trademark can last indefinitely as long as it remains in use and the owner maintains it. Federal registrations must be renewed and supported by periodic filings showing continued use, but there is no fixed expiration. A trademark can be lost, however, if it is abandoned through non-use or becomes generic for the product itself.
What counts as trademark infringement?
Trademark infringement generally occurs when someone uses a mark that is identical or confusingly similar to a protected mark in a way likely to cause consumer confusion about the source or sponsorship of goods or services. Courts weigh factors such as the similarity of the marks, the relatedness of the goods, the strength of the mark, and evidence of actual confusion. Remedies can include injunctions and damages.