If you have begun to use a trademark, you should apply for registration in order to protect your rights.
If you are planning to use a trademark, you should research it first to make sure it is available. Otherwise, you could be sued, even if you were completely unaware of the other mark. You can apply for registration based on a proposed use of a trademark. By starting the process as early as possible, you are protecting yourself as much as possible.
Please note that legally, it is not essential to register a trademark. However, as illustrated in the case history below, delay can create problems if more than one person begins using the same trademark or very similar trademarks without registering. In such a situations, it may take long and expensive legal proceedings to sort out who really owns what. If you register early, however, it puts the world on notice of your claim to the mark. It can also prevent others from using or registering a confusingly similar mark.
A Case History
If someone else uses a trademark after you, you will likely have priority. If they apply for registration, you can oppose their application because, as the first user, you are the one entitled to registration. An example helps to explain this point:
You begin using the trademark “Rainbow” to identify a new line of paint that you are selling. Your first valid commercial sale with the trademark properly used was on January 1, 1995. You have not registered your trademark. In 1998, the XYZ Company begins to sell paints with the same trademark “Rainbow.” They have no knowledge of your mark, and are operating in a distant city. They decide to register, and put in an application for a trademark for Rainbow for their line of paints. If you find out about this application you could oppose it, as you were the first to use it and, as such, would likely have priority.
However, if you don’t register your trademark, your mark won’t appear on the trademark register. The Trademark Examiner would therefore not be able to pick it up as a conflict, and therefore XYZ Company could very well get the registration without knowing that you were already using the trademark. If you find out about the proposed registration, you can oppose it. However, if you don’t find out about it, and if five years pass after their registration, you could lose the right to register that mark, even though you were the first user. You may be able to continue to use the trademark in your local area or market, but this would likely involve legal action and considerable expense.