General legal information, published for everyone. It does not apply the law to anyone’s particular situation and is not legal advice. Laws change and differ by place; check the primary sources below.
Quick summary
- Trademark rights arise from use, not from registering a business name or domain name.
- Federal registration with the USPTO gives nationwide notice, legal presumptions, and the right to use the ® symbol.
- How distinctive a mark is decides how strongly it is protected; generic terms cannot be trademarks.
- Infringement turns on whether a use is likely to cause confusion about source.
- Registrations must be maintained with filings between the fifth and sixth years and every ten years.
What it means
Trademark law protects consumers from confusion and protects businesses' reputations. It does not give anyone ownership of a word in general; it protects a mark for particular goods or services. Two companies can often use the same word for unrelated products without conflict.
Trademarks differ from copyright (which protects creative works) and patents (which protect inventions). Registering a company name with a state, or registering a domain name, does not by itself create trademark rights.
Key terms
- Mark
- A trademark (for goods) or service mark (for services) that identifies source.
- Use in commerce
- Bona fide use of a mark in the ordinary course of trade, such as on products or in advertising for services actually offered.
- Principal Register
- The USPTO's main register, which carries the full benefits of federal registration.
- Intent-to-use application
- An application filed before use begins, under Lanham Act § 1(b). Registration issues only after use is shown.
- Likelihood of confusion
- The core infringement test: whether consumers are likely to be confused about the source or sponsorship of goods or services.
- Secondary meaning
- Proof that consumers have come to associate a descriptive term with a single source, which is required to protect a descriptive mark.
- Dilution
- Blurring or tarnishment of a famous mark, actionable even without confusion.
How the law works
How rights arise
Common-law trademark rights arise from actual use of a mark in connection with goods or services, generally in the geographic area where the mark is used. Federal registration on the Principal Register gives nationwide constructive notice of the owner's claim (15 U.S.C. § 1072), serves as evidence of validity and ownership (§ 1057(b)), and can become incontestable after five years of continuous use (§ 1065). An application can be based on current use (§ 1(a)) or on a bona fide intent to use (§ 1(b)).
Distinctiveness: the spectrum of marks
Courts sort marks along a spectrum described in Abercrombie & Fitch Co. v. Hunting World, Inc. (2d Cir. 1976):
- Fanciful (invented words) and arbitrary (real words unrelated to the product) marks are inherently distinctive and receive the strongest protection.
- Suggestive marks hint at a quality and are also inherently distinctive.
- Descriptive marks describe the product and are protected only with secondary meaning.
- Generic terms name the product itself and cannot be trademarks.
In USPTO v. Booking.com B.V. (2020), the Supreme Court held that a "generic.com" term is not automatically generic; the question is how consumers understand it.
Infringement and dilution
Using a registered mark in a way likely to cause confusion is infringement under 15 U.S.C. § 1114; § 1125(a) provides a similar claim for unregistered marks and false designations of origin. Courts weigh factors such as the similarity of the marks, the relatedness of the goods or services, the strength of the plaintiff's mark, evidence of actual confusion, marketing channels, purchaser care, and intent. Owners of famous marks also have a dilution claim under § 1125(c). Remedies can include injunctions, profits, damages, and in exceptional cases attorney's fees (§§ 1116, 1117).
Notice symbols and maintenance
The ™ and ℠ symbols may be used to claim rights in any mark. The ® symbol may be used only after federal registration (§ 1111). To keep a registration alive, the owner files a declaration of continued use between the fifth and sixth years after registration (§ 1058) and renews every ten years (§ 1059). Marks can be lost through abandonment, such as non-use with intent not to resume.
Searching and clearance
Before adopting a mark, businesses commonly search the USPTO's trademark database, state registrations, and the marketplace for similar marks used on related goods or services. The USPTO also refuses registration for marks likely to be confused with existing registrations, for descriptive or generic terms without secondary meaning, and on other statutory grounds (15 U.S.C. § 1052).
Examples
Hypothetical example
Same word, different markets
A bakery called "Summit" and a software company called "Summit" may coexist, because consumers are unlikely to think one makes the other's products. A second bakery called "Summit" in the same market would raise a much closer question.
Hypothetical example
A descriptive name
A store named "Best Bike Repair" chose a descriptive name. It would likely need to show secondary meaning before it could stop others from using similar descriptive words, and the word "bike repair" itself could never be exclusively owned.
Common questions
Does registering an LLC name give trademark rights?
No. State entity registration only prevents another entity from registering an identical or confusingly similar name in that state's records. Trademark rights come from use and, for nationwide protection, federal registration.
Is federal registration required to have a trademark?
No. Common-law rights arise from use. Registration adds nationwide notice, presumptions, and other benefits.
When can the ® symbol be used?
Only after the USPTO registers the mark, and only for the goods or services covered by the registration.
How long does a trademark last?
As long as the mark is used and, for registrations, the required maintenance filings are made. There is no fixed end date.
Important distinctions
Trademark vs. copyright vs. patent
Trademarks protect source identifiers; copyright protects original creative expression; patents protect inventions and designs. A logo can be protected by both trademark and copyright.
™ vs. ®
™ is an unregistered claim anyone can make; ® signals federal registration, and misusing it can cause problems with enforcement or registration.
Primary sources
- Statute15 U.S.C. § 1051Lanham Act — application for registrationUnited States (federal)
- Statute15 U.S.C. § 1052Marks registrable on the Principal Register; refusalsUnited States (federal)
- Statute15 U.S.C. § 1057(b)Certificate of registration as evidenceUnited States (federal)
- Statute15 U.S.C. §§ 1058, 1059Maintenance and renewalUnited States (federal)
- Statute15 U.S.C. § 1065IncontestabilityUnited States (federal)
- Statute15 U.S.C. § 1072Registration as constructive noticeUnited States (federal)
- Statute15 U.S.C. § 1111Notice of registration (®)United States (federal)
- Statute15 U.S.C. § 1114Infringement of registered marksUnited States (federal)
- Statute15 U.S.C. § 1125False designation of origin; dilutionUnited States (federal)
- CaseAbercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976)United States (federal)The spectrum of distinctiveness.
- CaseUSPTO v. Booking.com B.V., 591 U.S. 549 (2020)United States (federal)"Generic.com" terms are not automatically generic.
- Agency guidanceUSPTO — Trademark basicsUnited States (federal)
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- Last updated
- Oct 8, 2026
- Jurisdiction
- United States (federal)
- Written by
- House Legal editorial (AI-assisted)