It is commonly believed that a company must registered with the U.S. Trademark Office in order to obtain a trademark. In reality, it is the other way around — a company must first have an established trademark in order to register it with the Trademark Office (although there are, under certain circumstances, procedures for essentially “reserving” a name). Therefore, if you have already been in business for some time and you haven’t yet registered your trademark, you may still have rights. For example, you may have priority rights in the geographic region where you do business, even against a competitor who later enters the market and even obtains a registration. However, you unregistered trademark must still meet the legal requirements of a trademark, in particular distinctiveness and customer association with your good or service. Of course, registration does provide significant benefits, such as access to federal courts (which are typically faster than state courts as their dockets are less crowded, and also usually have judges that are well-versed in trademark law), as well as a presumption of ownership and constructive notice to other users and (after certain requirements are met) incontestability, in addition to the potential for statutory damages (which can sometimes be greater than actual damages that are often difficult to prove). Therefore, once a trademark is established it is typically prudent to proceed with registration, but just because you have not yet registered your company’s trademarks doesn’t mean that you don’t have any rights.
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