State Trademarks
A state-based trademark is a trademark that is registered and recognized at the state-level. It does NOT take precedence over federal-based trademarks, and it does NOT convey trademark rights in any state, except the state (or states) where your state-based trademark is registered.
State-based trademarks are good alternatives when you cannot register a trademark at the federal level. This can happen for many reasons, including issues of descriptiveness or your mark violates one of hundreds of rules that prevent federal registration.
Examples of federal registration problems where state-based trademarks may be a good alternative, include:
- Prohibited subject matter (i.e. cannabis-related products or services)
- Geographic descriptiveness (i.e. “Albuquerque’s Best Hamburgers” in Albuquerque)
- Geographic misdescriptiveness (i.e. “Joe’s Cuban Cigars” from Santa Fe – although this example could be considered deceptively misdescriptive, too)
- Primarily a Surname (i.e. “Ortega’s Pharmaceuticals”)
- Merely Descriptive (i.e. “Creamy Bagels”)
- Deceptively Misdescriptive (i.e. “THC Tea” on items that aren’t tea or contain THC – although many states will not permit deceptively misdescriptive marks)
- Ornamentation (i.e. slogans appearing across the front of a shirt)
- Widely Used Messages (i.e. “Once a Marine, Always a Marine”)
- Religious Texts (i.e. Any quotations from any religious text, such as the Bible, Quran, Torah, or Diamond Sutra)
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These are but just a few of the hundreds of reasons why the USPTO may not permit federal registration of an otherwise legitimate business name or trademark.
What state-based are not good for, and should never be used to, challenge a federal-based trademark. This just won’t work.
When you register a trademark, we encourage you to determine whether a federal-based trademark would stand in your way, and we would encourage you to avoid filing a state-based trademark if you know your use of the mark could be considered “confusingly similar” to the federal-based trademark. Consider a trademark attorney consult, if you have questions about this or want to learn more.
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