Registered Marks Versus Common Law Marks
A "key fact about trademark law is the difference between the ™ symbol and the ® symbol. The former requires no formal paperwork. You literally just add ™ to claim it. The latter requires an application with the United States Patent and Trademark Office that should include proof of sustained and exclusive use of the mark." Using the "TM" mark does not actually confer any legal rights in federal law, but it may nevertheless help a business acquire secondary meaning concerning a specific mark.
Registered and non-registered trademarks are both eligible for protection under the Lanham Act. The advantage of having a registered mark is that after five years of unopposed use, the mark becomes "incontestable". An incontestable mark cannot be attacked on the grounds that it is merely descriptive (even if it is). This means that the defendant in a trademark infringement suit cannot directly attack the plaintiff's mark, but must instead focus on showing a lack of a likelihood of confusion. Even without incontestability, a registered mark has a presumption of being a valid trademark, placing the burden on the defendant to attack the plaintiff's mark.
Read more about this topic: United States Trademark Law
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