A creator‑ and founder‑friendly guide to trademarks: how rights arise, how federal and state protection differ, how to register, how enforcement works, and how to avoid common brand mistakes.
Trademark law is unique in the IP world in that it is nominally intended to protect consumers instead of innovators. It does that by protecting source identity—the words, logos, packaging, slogans, colors, sounds, and other signals that help customers know “who made this?” Trademarks can and do prevent consumer confusion. However, in practice, trademarks function as competitive barriers: they prevent look‑alike brands from appropriating your credibility, and they help you build lasting goodwill.
If you want the shortest version first, start with U.S. Trademarks in 60 Seconds. If you’re operating without a federal registration (or you’re not sure whether you already have rights), read Unregistered Trademark: your legal rights before registration. And if you’ve ever wondered what the TTAB does, see TTAB Explained.
If you prefer to get your information via video, you can watch me do shot after shot of Tabasco while explaining trademarks (hey, you have to keep the viewers interested).
What a trademark is (and what can be trademarked)
A trademark is any symbol that identifies the source of goods or services. The most common marks are word marks (brand names) and design marks (logos), but U.S. law can protect trade dress (the overall look and feel of packaging or a product), sound marks, motion marks, and more, as long as the feature functions as a source identifier.
The key is consumer perception. If consumers see the symbol as “this comes from that company,” it can function as a trademark. If consumers see it as functional, ornamental, or descriptive without source meaning, trademark protection becomes harder. Consumer perception can change over time — just ask Bayer why generic “Aspirin” exists in the United States (spoiler: The mark became the generic name for Acetylsalicylic acid).
Strong vs weak marks: the spectrum matters
Not all brand names are created equal. Courts and the USPTO often think about marks along a spectrum: generic (never protectable), descriptive (protectable only with secondary meaning), suggestive (inherently protectable), and arbitrary/fanciful (strongest). This matters because choosing a name that is too descriptive can trap you in years of friction: refusals at the USPTO, weak enforcement, and brand confusion you can’t stop.
It is important that innovators pay attention to real-world issues beyond the legal realm. One critical issue is domain names. If you want to use the name “ChimpCo” as your trademark and company name, you’ll run right into the fact that the domain name chimpco.com is taken. You need to make sure that domain names and social media handles are available to support your efforts to create a distinct brand around a name.
If you like counterintuitive brand stories, you may enjoy Trademarks with a Twist, which explores how trademark strength and meaning can evolve over time.
How trademark rights arise in the U.S.
In the United States, trademark rights generally arise through use in commerce, not through registration alone. That means you can have “common law” trademark rights even without a registration, based on actual use. Those rights are usually geographically limited to the areas where you have market presence, and they are harder to prove and enforce than a federal registration, but they are real.
Federal registration under the Lanham Act (Title 15) provides nationwide presumptions and powerful enforcement tools. The federal statutory framework starts at 15 U.S.C. § 1051. Registration does not magically create a good trademark if the mark is generic or confusingly similar, but it can drastically strengthen a mark that is otherwise protectable.
States also have trademark statutes and state‑level registrations. These can be helpful for purely local businesses, but they typically do not deliver the nationwide presumptions and procedural advantages of a federal registration. Think of state registration as “better than nothing locally,” not as a substitute for federal protection if you plan to scale across state lines.
Of course, the nationalization of markets and information arising from the internet makes determining where a trademark has been used in commerce a far more complicated question than it was in the horse-and-buggy days.
Federal trademark registration: what it really does
A federal registration can (among other things) give you a public record of your claim, presumptions of validity/ownership, potential nationwide priority (subject to earlier users), the ability to use the ® symbol, stronger remedies in litigation, and practical advantages in dealing with online platforms, counterfeiters, and domain disputes. It can also help you stop imported infringing goods through U.S. Customs in certain cases.
Federal registration is usually pursued through the USPTO. The process looks like: search → choose classes → file (use‑based or intent‑to‑use) → examination → office actions (if any) → publication → opposition window → registration (or Notice of Allowance for ITU) → maintenance filings. “Intent‑to‑use” is one of the U.S. system’s most founder‑friendly features; it lets you reserve rights while you’re still building, as long as you later prove real use. That said, I have two words to rebut intent-to-use: The Internet. It is trivially easy to begin promoting your business by creating an internet presence, putting the mark into actual use in commerce (remember, though: Talk to your lawyer about it).
For brand owners, the hard part is not “filling out the form.” The hard part is (1) choosing a mark that is legally strong, (2) selecting accurate descriptions and classes that fit your real use, (3) providing an acceptable specimen, and (4) avoiding landmines around descriptiveness and confusion.
State trademark law and “unfair competition”
State trademark statutes vary, but many track the same basic idea: they provide a registry and a cause of action for confusing uses within that state. Separate from those statutes, every state also has some mix of unfair competition, passing off, consumer protection, or deceptive trade practices law that can address confusing branding in the marketplace.
The practical takeaway is that you usually litigate trademarks using a blend of federal and state claims. Federal claims under the Lanham Act are common, but state claims can supplement remedies and fit specific fact patterns (especially when the conduct is localized or when deceptive marketing practices go beyond mere confusion).
Trademark infringement: what gets you in trouble
Trademark infringement usually asks whether consumers are likely to be confused about source, sponsorship, or affiliation. Courts consider multiple factors (strength of the mark, similarity, proximity of the goods, evidence of actual confusion, the defendant’s intent, and more). There isn’t one single “test,” but the core is consumer perception in context.
There are also special doctrines:
Trademark dilution protects famous marks from blurring and tarnishment even without likely confusion (think “Kodak” used for unrelated goods). This is reserved for truly famous marks, not just successful local brands.
False endorsement claims (often under Lanham Act § 43(a)) sometimes overlap with the right of publicity. If your issue involves a person’s identity being used to imply endorsement, you should also understand right of publicity law. Start with Right of Publicity.
First Amendment Rights Can Overpower Trademarks : If you wanted to register “cocacolasucks.com” and use it for a non-commercial, non-monetized site complaining about Coca-Cola products, that is almost always going to be considered First Amendment-protected activity.
Counterfeiting is its own high‑stakes category and can unlock enhanced remedies.
Defenses and “fair uses” in trademark
Trademark law has several important safety valves. Descriptive fair use can allow use of a term in its ordinary descriptive sense (not as a brand). Nominative fair use can allow you to refer to someone else’s trademark to identify the thing you’re talking about (for example, saying you repair “iPhone” devices) as long as you do it in a way that avoids implying affiliation. The First Amendment can also protect uses in expressive works (titles, art, commentary), though the boundaries are fact‑specific (consider my use of Tabasco® in my video trademark explainer).
The TTAB: trademark litigation’s more chill alternative
The Trademark Trial and Appeal Board (TTAB) is an administrative body within the USPTO. It handles oppositions, cancellations, and reviews certain examiner refusals. It does not award damages, but it can decide who gets (or keeps) a registration. For many, TTAB proceedings are a quicker, simpler, and more cost‑effective way to stop a problematic registration early—before it becomes a marketplace fight. See TTAB Explained.
Maintenance: trademarks can last forever (if you do the work)
Unlike patents and most copyrights, trademarks can potentially last indefinitely. The price you pay is ongoing use and maintenance. You must actually use the mark in commerce, police confusing uses, and file required maintenance documents with the USPTO at set intervals. Many owners lose registrations simply because they miss filings or stop using the mark as registered.
If you want a real‑world example of how a trademark can function as a business asset (and a brand promise), see Innovation Cafe® is a registered trademark.
A practical trademark playbook
Trademarks reward founders who think early. Before you invest in a name, do a real clearance search (not just a quick Google), including USPTO records and common law use. Choose a name that is distinct, not descriptive. Use your mark consistently, and keep it separate from your company name if needed (a company can own multiple brands). And for heaven’s sakes, make sure you can still get the domain name.
If you already have a site, products, or services in the world, your next best move is usually to: (1) confirm the mark is strong and available, (2) file a federal application if you plan to grow beyond a local area, and (3) create a simple enforcement routine (monitoring, consistent usage, and a plan for how you handle infringements).
And if you’re building a full IP strategy, read the companion cornerstone pages on patents, copyright, and trade secrets, along with Intellectual Property Overview.
Internal references: U.S. Trademarks in 60 Seconds, Unregistered Trademark Rights, TTAB Explained, Trademarks with a Twist, Right of Publicity.
Disclaimer: This article is educational information, not legal advice. Trademark availability and risk are fact‑specific and depend on the actual marketplace context. If a brand matters to your business, consult a trademark attorney before investing heavily.
AI Disclosure: This article was researched and some of the prose improved using AI.