Federal registration is vital to brand strength, deterrence based on liability

Federal protection for trademarks is based on a "registration" system. This system is established by the federal trademark statute known as the Lanham Act.47 Federal trademark registration is entirely optional. Once a firm has commenced use of a mark via bona fide sales to the public (or through other qualifying activities) it will be protected under the common law of its state regardless of whether it has obtained a federal registration. Federal registration, however confers numerous advantages.

For instance, it guarantees the registrant trademark rights in all parts of the United States, even those regions where it might not have made any sales or done any advertising. As we shall see, the common law is not so generous. Second, only a federal registrant may use the R-in-a circle federal registration symbol (®), which not only serves to put potential infringers on notice that the mark is protected, but may subliminally suggest some degree of quality to the consuming public. Third, federal registrants may invoke the assistance of the U.S. Customs and Border Protection service to prevent infringing imports from entering the country. In addition, registration provides constructive notice to other parties of the registrant's claim of ownership and the registration can be used in litigation as prima facie evidence of the registrant's ownership of the trademark. After five years, the registration can be declared incontestable, and can then be used in litigation as conclusive evidence of the registrant's right to use the mark, subject only to itemized defenses. There are additional advantages of somewhat lesser importance as well, all of which serve as a strong incentive for many merchants to pursue federal registration.48