The U.S. trademark system is considered a “first-to-use” system. Thus, the first to adopt and use in the United States a distinctive and nonfunctional mark in connection with goods or services has the superior claim to rights in the mark. Rights gained through use of the mark alone are sometimes called “common law” rights, and are often reflected in the use of the symbols “TM” (for trademark) and “SM” (for a service mark). In contrast, most other major trademark systems in the world are first-to-register systems. These systems operate on the principle that the first to file an application for registration gains priority.
Although use creates trademark rights in the United States, a trademark owner can enhance those rights through a process of federal registration. The following chart highlights some of the advantages afforded a registered mark as compared to a mark that has merely been used.
COMPARISON OF BENEFITS OF FEDERAL REGISTRATION OVER USE ALONE
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The registration of a mark is reflected by the use of the symbol ®. An applicant for registration must use the mark in the United States, in commerce, either before an application is filed (for a “use-based” application) or once the application is allowed (for an “intent-to-use” application). In either case, use is a prerequisite for federal registration.