Here's a fun fact that might surprise you: not all intellectual property rights are created equal. In the United States, patents and copyrights get their marching orders directly from Article I, Section 8, Clause 8 of the Constitution ("To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."); meaning they fall exclusively under federal jurisdiction. U.S. Trademark rights however, come in not one, not two, but three distinct flavors – each with its own strengths and quirks.
Also, there is no global trademark. Trademarks are territorial so each country requires (with VERY FEW exceptions) its own registration if you want protection in that country. Anyone who tells you otherwise is selling you something that doesn't exist (or trying to steal your credit card info, but that deserves its own blog post).
Complicated Start (i.e.The Nerdy Part): You Can't Do That! Why would you do that?
Immigrants brought common law trademark and maker's mark concepts from Europe to North America in colonial times - morphing overtime into common law rights provided for under state law.
The first federal law addressing trademarks was passed in 1870, but wasn't around for long. The Supreme Court of the United States (SCOTUS, in legal slang) checked Congress' power & declared the Act unconstitutional because the title ("An Act to Revise, Consolidate, and Amend the Statutes relating to Patents and Copyrights") made it seem that Congress passed the legislation under the intellectual property clause of the Constitution. The Court said no thanks; trademarks are property to be regulated by common law and the states because "[t]he ordinary trade-mark has no necessary relation to invention or discovery."
Following that fail, federal legislation would not be attempted again until 1881. And it stuck! This time Congress used its power under the Commerce Clause. However the 1881 Act, weirdly, only provided for federal registration of "trademarks used in commerce with foreign nations and the Indian tribes, but did not include interstate commerce." And then, congress & litigants went on a bender with frequent revisions and court cases attempting to fit and fix the law to evolving social & economic structures.
AND THEN, recognizing that after all that the law STILL didn't adequately address modern commerce and market needs, the American Bar Association began the long process that eventually yielded the Lanham Act signed into law by President Harry S. Truman on July 5, 1946.
After all that, both federal rights and common law rights currently get their power from the same law, though.
Common Law Rights: The Grassroots Hero
Section 43(a) of the Lanham Act created a federal cause of action for unfair competition, including trademark infringement, even for unregistered marks - i.e. common law rights.
This is beautifully simple in concept – use a mark first in connection with your goods or services, and Presto! Boom! - you've got common law trademark rights. No paperwork, no fees, no government bureaucracy.
But here's the catch (you knew there was one): common law rights can be quite limited. Your protection extends exactly as far as your actual use – no more. If you're running "Carrie's Amazing Pizza" restaurant in downtown San Diego, your common law rights protect you for restaurants in San Diego. Not against "Carrie's Amazing Pizza" restaurants in Arizona, and not against "Carrie's Amazing Pizza" t-shirts in San Diego. It's protection with significant limits – real, but local & specific to the goods/services you are using it for.
State Trademark Rights: The Regional Champion
State registration is like upgrading from a local food truck to a statewide restaurant chain. Your "Carrie's Amazing Pizza" trademark now has protection from the mountains to the sea (if your state, unlike California, doesn't have both - then you just get coverage for the whole state). The requirement here is straightforward: you need to actually be using your trademark to file the application. Most states aren't interested in protecting marks that exist for projects that kind-of-might-maybe come to fruition.
The Secretary of State's office for each state typically manages state trademark rights, along with business filings and many other intrastate commerce related services.
Depending on your business type (cannabis, anyone?) this might be a very serviceable option.
Federal Registration: The Heavyweight
Finally, we reach the top tier of trademark protection: federal trademark registration with the USPTO. The Michelin Star equivalent for trademarks, if you will.
Federal registration comes with serious advantages, including a legal presumption that you are the exclusive owner of the trademark and have nationwide priority.
In plain speak - the biggest advantage is that federal registration provides for exclusive rights across all 50 states, even in areas where you haven't done business yet. But there's more! Another cool thing about a federal registration is the Constructive Notice Doctrine. This means everyone is deemed to be aware of registered trademarks - the registration serves as public notice.
Federal registration & constructive notice create a legal presumption that you own the mark and have the exclusive right to use it. This shifts the burden of proof to anyone challenging your trademark, making enforcement much easier.
Plus, you get to use that coveted ® symbol.
The Tale of Two Symbols: ® vs ™
Speaking of symbols, let's clear up common confusion. That ® symbol isn't just decorative – it's reserved exclusively for federally registered trademarks. It's the trademark version of a VIP pass. Not all countries use this symbol, but many recognize its use for marks registered in that country.
The ™ symbol is the general admission trademark indicator. You can use it for unregistered trademarks or marks registered only at the state level. It's like saying, "Hey, I consider this my trademark," without the federal government's official stamp of approval.
SM is the lesser known, but also important symbol. This is an indicator for unregistered or state registered Service Marks.
Location, Location, Location
Here's something that sets trademarks apart: geography matters. A lot. Unlike patents, which provide uniform nationwide protection from day one, trademark rights are inherently tied to specific places. Your protection is only as good as your registration jurisdiction allows.
This can create interesting scenarios. There could be a "Mathilde's Bakery" registered federally, another registered in California, and a third operating under common law rights in Texas – and all three might coexist legally. This is becoming less common as smaller businesses develop stronger nationwide footprints due to online presence, and the value & benefit of securing trademarks has become more mainstream.
Choosing Your Adventure
Understanding these three levels isn't just legal trivia – it's strategic business planning. The right choice depends on your business scope, budget, and growth plans. A local service business might do well with state registration, while companies with national ambitions should consider federal protection. A prudent strategy may also need to change as your business changes over its lifecycle.
Ready to navigate the trademark protection landscape? We can help you evaluate your options and develop a strategy that grows with your brand. Contact us today to discuss which type of trademark protection makes the most sense for your situation.
1. If you are not interested in the nerdy legal history bits, skip to the last paragraph of the section :)
2. In re Trade-Mark Cases, 100 U.S. 82 (1879) at 94
3. J. McCarthy, Trademarks and Unfair Competition § 5:3 (5th ed. 2025)