15. What is required to secure trademark protection?
Trademark law requires that a mark be “used in commerce” and “distinctive” from other marks. If a mark is used in commerce and sufficiently distinctive, there are two primary methods of securing trademark protection. The first method is “state-law protection”. State-law protection may include both statutory protection and common-law protection of the trademark rights within a particular state’s borders. The trademark is subject to protection if it meets all of the qualifications for protection and is used to identify a good or service sold within the state. The second method is “federal protection” resulting from registering the mark with the US Patent and Trademark Office and using the mark in interstate commerce. Each of these requirements and methods of establishing trademark rights is discussed separately.
• Discussion: Why do you think state law and federal law provide for trademark protections? Can you think of any initial benefits from securing trademark protection under state and federal law?
• Practice Question: What are the two types of trademark protection that may exist at the state or federal level? What are the common elements between these methods of protection?