Trademarks may be registered with the USPTO or in individual states. Registration is not mandatory because protection begins as soon as a person begins using a mark in association with a good or service. However, registration does provide several advantages that will be discussed later in the course. Registration with the USPTO is also desirable if a party intends to use a mark with a good or service but has not actually done so to date.

We generally recommend registration with the USPTO over registration in an individual state because registration with the USPTO provides essentially all of the advantages of state registration plus many additional advantages. The only real benefit of state registration is notice.

The USPTO categorizes marks into four different groups: trademarks, service marks, certification marks and collective marks. Trade names may also be registered with the USPTO when they are also used as a trademark or service mark.

Domain names are generally registered through a private domain name registrar but may also be registered as a trademark or service mark when they function as such.

Trade dress is similar to a trademark. Trade dress includes a product’s design, product packaging, color or other distinguishing nonfunctional element of appearance. Examples of trade dress include distinctly shaped bottles, the red and white color schemes of Coca Cola or the color green for John Deere tractors.

The USPTO may allow a party to register its trade dress. However, they have a higher standard for registering certain forms of trade dress, such as color or product configuration. As a result, certain forms of trade dress may or may not be register able. However, some unregisterable trade dress may still be protectable.