B. Trademark Registration

Trademark ownership in the United States is based on who is first to use the mark (the senior user). But you can strengthen your ownership by registering a mark with the United States Patent and Trademark Office. This same rule applies to domain names that serve as trademarks—that is, domain names that are used as addresses for commercial websites. Generally, you can federally register a trademark if it is:
•used in interstate or international commerce (which includes virtually all commercial domain names)
•distinctive to some degree (that is, memorable in some way)
•not scandalous or immoral (four-letter words are verboten) and
•not likely to create customer confusion when compared with other registered marks.
The primary benefits of federal registration are that you are presumed to be the owner of the mark throughout the whole country, and anyone who infringes your mark will be presumed to have done it willfully. Infringement means you can collect large money damages, and possibly attorneys' fees, in a federal court lawsuit. Also, you are entitled to use the "r in a circle" notation next to your name to inform the world of your mark ownership. Unregistered marks are identified with the less powerful "TM ."
Chapter 8 explains the rules and benefits of registration in more detail and provides step-by-step instructions for filing a registration application on the Web.
TipFor a more complete treatment of these and other trademark issues, see Trademark: Legal Care for Your Business & Product Name, by Stephen Elias and Kate McGrath (Nolo), or visit the Patent, Copyright and Trademark section of Nolo's free Legal Encyclopedia at www.nolo.com.
Protection for Unregistered Trademarks
State Trademark Registration Laws. You can register your trademark with your state, but there are few practical benefits. State registrations were more important when it was common for marks to be used solely within a single state, which meant they didn't qualify for federal registration. However, with the advent of the Web, very few marks are now restricted to a state's geographical borders, and federal registration is definitely the preferred approach.
State and Federal Unfair Competition Laws. Trademarks that have not been federally registered can still receive certain kinds of limited protection under state and federal unfair competition laws. These laws bar other businesses from using your trademark in confusing and unfair ways. Protection from unfair competition is most useful when another business is trying to use your trademark to create the impression that its business is affiliated with yours. In other words, unfair competition laws can help you if someone isn't making it clear that they are not connected to your business.
For more on unfair competition, see Trademark: Legal Care for Your Business & Product Name, by Stephen Elias & Kate McGrath (Nolo).