Under the common law, trademark rights arise by use alone, so it is possible to gain trademark rights in a trademark by simply beginning to use it for your goods/services. However, there are a number of benefits to hiring a trademark attorney and registering your trademark at the federal level.
The first of these benefits is a legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide for your listed goods/services. Another benefit is the public notice function of being able to use the registration symbol, ®, to demonstrate that you have a federal registration.
Another consideration prior to launching a brand of goods or services is to have a clearance search to see if your mark is available for your selected goods/services. Often, businesses launch and invest money in marketing for a particular mark only to find out later that the mark is already in use by another company. This realization sometimes comes in the form of a cease and desist letter from the owner of the trademark who has priority of use. This can cause a great deal of waste, all of which can be avoided by investing in a preliminary trademark search.
And all trademark searches are not equal. Simply searching for federally registered marks may miss vital information. For example, another company may have a state registration but not a federal registration. The state registration can be just as dangerous as a federal registration. In fact common law trademark use can be used to cancel federal trademark registrations if the common law user has priority and there is a likelihood of confusion between the applicable trademarks. As such, it makes sense to hire a professional to conduct a comprehensive clearance search covering federal, state and common law trademarks. If the search is clear, the next step should often be to attempt to register your trademark at the federal level and enjoy the benefits of a federal trademark registration.