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Trademark 101: State Trademark or Federal Trademark?

Now that you know what a trademark is, what a trademark isn’t, and that you should get a trademark, let’s explore if a State trademark or Federal trademark is most appropriate for your needs.

For the USA, trademarks can be obtained either at the State level or the Federal level. So, which do you need? I’ll explain both and that’ll give you a clearer picture as where to go from here.

First and foremost, a State trademark gives you trademark protection for that specific state whereas a Federal trademark gives you trademark protection nationwide. Simple enough, yes? But, which is the right trademark for your needs?

1)      Are you actively in business?
2)      Are you only doing business in one city or county or just statewide?

If you answered yes to both, then exploring a State trademark is your next step. Here are some advantages to a State trademark:

·         The right to expand statewide. The name will be waiting for you in other metros.
·         If another mark is infringing upon yours within the state, you’ll have access to State courts.
·         Other entities will much more readily accept your trademark and first use common law rights when you have a registered State trademark.
·         Future Federal trademarks will not be able to be used commercially anywhere in your State, thus giving you a strategic advantage against larger competitors.

While a State trademark certainly has its advantages, the increase in Federal filings over the years shows the influence of the internet and the wide reach possible for even the smallest of businesses. So, first, let’s make sure you can even qualify for a Federal trademark.

1)      Are you currently in business in at least 2 states and/or between the USA & any other country?
2)      If you’re not yet in business or in business in only one state, do you have plans to expand to another state or states or other countries?

Before you answer yes or no, it’s important to define what being “in business” actually means in respect to the trademark world. To qualify for a Federal trademark, the mark must be in use in interstate commerce. “For goods (i.e. products), "Interstate commerce" involves sending the goods across state lines with the mark displayed on the goods or the packaging for the goods. With services, "Interstate commerce" involves offering a service to those in another state or rendering a service that affects interstate commerce (e.g. restaurants, gas stations, hotels, etc.).”

So, if you answered yes to either of those questions and your business is truly involved in either interstate, “territorial (between the United States and a territory of the United States), (or) foreign commerce (between the United States and a foreign country),” then exploring a Federal trademark is the way to go.

Still not sure or have other questions, please leave a comment or email me shannon at tmexpress dot com


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