When Should You Register Your Trademark?

Trademark Protections for NFTs

For NFTs and other trademarks, protection can be obtained without formal registration with the USPTO (United States Patent and Trademark Office). This protection arises when you use the trademark in commerce, and consumers begin to associate it with a specific product or service.

The Importance of Registration

While it’s possible to establish trademark rights through use, not having a formal registration can limit your ability to enforce those rights effectively. Therefore, for economically meaningful trademarks, registration is often recommended.

Understanding “Fair Use”

It’s crucial to note that trademark protection doesn’t extend to “fair use,” which includes two types:

Classic Fair Use

Classic fair use occurs when someone else’s trademark is used to describe goods or services. In this case, the use doesn’t indicate the source of the goods or services but rather employs the registered mark to describe them. This often involves referencing a competitor’s mark in advertising and non-commercial use.

Nominative Fair Use

Nominative fair use allows the use of a mark to name the owner’s goods and services when they couldn’t otherwise be easily identified.

Common Fair Use Scenarios

Examples of fair use situations include:

News reporting
Product reviews
Comparative advertising

In summary, trademark protection can be established through use, but formal registration is typically advisable for trademarks of significant economic value. It’s essential to understand the nuances of “fair use” and how it applies to various situations, especially in the context of NFTs and other trademarks.

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