I find that a lot of people are relatively unclear as to what actually gives you rights in a trademark. I’ve seen quite a few stories in the news where people thought that registering their business with their state would protect their name. People who thought that owning the domain name gave them the rights to a mark. People who thought owning the Facebook® or Twitter® handle vested their rights to a name. People who thought putting their business’ mark on a t-shirt or glass gave them trademark rights to that name for their core business.
Unfortunately, none of these things gives you trademark rights. There are only two ways to obtain rights in a mark. One is just by using the mark on the goods in commerce. Actually selling goods with your mark on them establishes “common law” trademark rights in a mark. The other way is to register your mark, either federally or with the state. Registration puts others on notice of your use or intent to use the mark in commerce.
I believe that many people are concerned about the cost of registration, and so put it off until the last minute. The problem here is that if you spend a great deal of time marketing your product prior to your first sale, and someone else registers the same mark for the same or even similar goods, there is a very good chance you could lose your mark to someone else. Because you haven’t done either of the two things that give you the rights to a mark.
Before investing a great deal of time or money in marketing a trademark, make sure you have the rights to it, either through use or registration.