Federal or State? Where to Register Your Trademark in the U.S.

Most founders discover partway through the branding process that the United States has two trademark registers, not one. There is the federal register maintained by the USPTO, and there is a separate register in each of the fifty states, administered by the Secretary of State or an equivalent office. These are not two tiers of the same system. The state register is not a discounted version of the federal one, and filing in a state does not put you halfway toward a federal registration. They are parallel systems with different requirements, different scope, different costs, and different consequences. Below is what each one actually gives you, what neither of them gives you, and how to decide which you need.

Start With What You Already Have

Before either register comes into play, you already own something. In the United States, trademark rights arise from use, not from filing. The moment you start selling goods or offering services under a name, you begin accumulating common law rights in that name.

Common law rights cost nothing and require no paperwork. Their weakness is geographic. They extend only as far as your actual market penetration and your reputation among consumers. A coffee roaster building a following in Austin has genuine, enforceable rights in Austin and around it. That same roaster has close to nothing in Chicago, where no customer has ever heard the name.

This geographic limitation is the entire reason the two registers exist. Everything that follows is about how far your rights reach beyond the place where you actually do business.

Federal Registration: The Nationwide Route

Federal registration is the only mechanism that gives you rights across the whole country, including in states where you have never sold anything.

What it requires

The threshold requirement is use in commerce that Congress can regulate, which in practice means interstate commerce. This is a lower bar than it sounds. Selling online to customers in other states qualifies. Shipping products across a state line qualifies. Serving customers who travel from other states can qualify. Software delivered over the internet qualifies almost by definition.

The bar exists, though, and a business that operates entirely within one state, serving only local customers, may genuinely fall outside it.

You do not have to be using the mark yet in order to file. An intent to use application lets you file before launch and lock in your priority as of the filing date, with proof of actual use submitted later.

What it gives you

Nationwide constructive use as of your filing date. This is the headline benefit and the one nothing else replicates. From the day you file, you are treated as having rights throughout the United States, including in territories where you have no presence. A company that starts using a confusingly similar mark in Oregon after your filing date cannot claim seniority just because they got to Oregon first.

Legal presumptions. A federal registration is prima facie evidence that the mark is valid, that you own it, and that you have the exclusive right to use it for the goods and services listed. In a dispute, that shifts the burden of proof onto the other side, which changes both the cost and the odds of enforcement.

The right to use the ® symbol. Only federal registration permits it. Using ® without a federal registration can expose you to claims of fraud or misuse.

Access to federal court and stronger remedies. Federal registration opens the door to federal jurisdiction, injunctive relief, recovery of the infringer's profits, and in counterfeiting cases, statutory damages that can reach into six figures per mark.

Customs enforcement. You can record a federal registration with U.S. Customs and Border Protection, which allows CBP to detain and seize counterfeit goods at the border. For any business selling physical products, this is one of the most practically valuable tools available.

Incontestability. After five years of continuous use following registration, you can file a declaration that forecloses several major categories of challenge to your mark. A registration that has reached incontestable status is substantially harder to attack.

An international foundation. A federal application or registration is the base for extending protection abroad through the Madrid Protocol, which lets you seek protection in many member countries through a single centralized filing rather than fifty separate national applications.

Deterrence, which is underrated. Your registration appears in every clearance search anyone runs before choosing a name. A large share of conflicts never happen at all, simply because a founder somewhere saw your mark in the database and picked something else. You never learn about those disputes because they were avoided.

Platform and commercial requirements. Amazon Brand Registry, app store enforcement programs, and the brand protection tools at Meta, Google, and Shopify generally require a registered federal trademark. Common law rights and state certificates will not get you in. Investors and acquirers ask about federal registrations during diligence, and a portfolio that consists of state filings tends to raise questions rather than answer them.

What it costs and how long it takes

The USPTO base application fee is $350 per class of goods or services. Surcharges apply if the application is not clean: $200 per class if you write your own description of goods and services instead of selecting pre-approved language from the USPTO ID Manual, $100 per class if required information is missing, and $200 per additional 1,000 characters in a long description.

Fees are charged per class, not per application, and they are not refundable if the application fails. A four class filing at the base rate is $1,400 in government fees before any legal work.

Timing typically runs about a year from filing to registration, and longer if the examining attorney issues an office action or a third party opposes the application after publication.

After registration, the mark requires maintenance. A declaration of continued use is due between the fifth and sixth year, and renewal filings are due every ten years. The USPTO does not send reminders, and missing a deadline cancels the registration outright.

State Registration: Fast, Cheap, and Narrow

State registration is administered by the state, usually by the Secretary of State, under a state trademark statute. Most states have adopted some version of the Model State Trademark Law, so the systems resemble each other, but details vary.

How it works in practice

Take California as an example. You file form TM-100 with the Secretary of State at $70 per classification code. Registration lasts five years and is renewable in five year terms, which is a shorter cycle than the federal ten years. Trademarks and service marks must be filed on separate applications, each with its own fee and its own specimen. Actual use in California is required before you file.

Texas charges $50 per class, with renewals at $25. Other states sit in a similar range, and some, including New York, still process applications on paper by mail.

Processing is fast. Where the USPTO takes months to reach a first examination, many states issue a certificate in a matter of weeks. There is no substantive examination remotely comparable to what the USPTO performs, and no publication and opposition period in most states.

What you actually get

Rights that stop at the state line. That is the fundamental constraint, and everything else follows from it.

Beyond that: an official record of your claimed date of first use in the state, which can matter if a dispute later turns on who was there first. Access to that state's courts and, in some states, to statutory remedies or dilution claims created by state law. A public record that any competitor conducting a careful search of that state will find.

It is worth being precise about what a state registration is doing. In most states it does not create substantive rights that your use had not already generated. It documents and reinforces rights that already existed under common law within that state, and adds procedural and evidentiary advantages. That is genuinely useful. It is not the same thing as a grant of exclusivity.

Note also that most states do not offer an intent to use option. You generally must already be using the mark in that state before you can file, so a state registration cannot be used to reserve a name ahead of launch.

When State Registration Is the Right Call

Your business is genuinely local. A single location restaurant, a salon, a landscaping company, a regional contractor. If the business does not reach across state lines, federal registration may not be available and may not be necessary. The state register was built for exactly this profile.

Federal registration is closed to you. The clearest example is cannabis. Federal registration requires lawful use in commerce under federal law, and marijuana remains a federally controlled substance. The USPTO refuses these marks even where the business operates legally under state law. For cannabis operators in legal states, state registration is often the only trademark protection available at all. Similar issues arise for certain CBD and hemp derived products depending on how they are formulated and marketed.

You want interim coverage during the federal wait. A state filing clears in weeks while your USPTO application takes a year. If you are launching into a state where a specific local competitor is a known risk, having the state certificate on file during the gap can be worth the small cost.

One state carries disproportionate commercial weight. Some businesses concentrate most of their revenue and most of their infringement risk in a single market. A state filing on top of a federal one adds a local evidentiary record and access to state law remedies that federal law does not provide.

In the first two scenarios, state registration is the answer. In the second two, it is a supplement to a federal filing, never a replacement for it.

What State Registration Does Not Do

This is where the misconceptions become expensive.

• It gives you nothing outside that state. A California registration is irrelevant to a dispute in Florida.
• It does not authorize the ® symbol.
• It does not stop a company in another state from obtaining a federal registration for the same or a similar mark and then expanding into your territory. Your state certificate may preserve rights in the area where you were already operating, but it will not stop the national rollout.
• It does not defeat someone with earlier rights. A prior federal registrant, or a prior user with established common law rights, outranks your state certificate regardless of when you filed it. Filing first in a state does not make you senior.
• It is not a step toward federal registration. There is no credit, no fast track, no carryover of your state filing date to the USPTO.

A Related Confusion Worth Clearing Up

Registering an LLC or corporation name with the Secretary of State is not a trademark registration. Neither is filing a DBA or fictitious business name. These filings tell the state who is conducting business and under what name. They create no brand rights, they do not stop anyone else from using the name, and the state will happily register your entity name even if it infringes someone else's trademark.

The same applies to buying a domain and to claiming social media handles. All of these are useful. None of them is a trademark.

The Practical Sequence for Most Startups

If you sell software, ship products across state lines, or operate online with customers in more than one state, file federally. That is the register that matches your business and the one every platform, investor, and acquirer will ask about.

The order matters:

1. Run a clearance search before you commit to the name, covering the federal register, relevant state registers, and common law uses that never made it into any database.
2. Identify your classes accurately. For software companies this usually means Class 9, Class 42, or both, depending on how the product is delivered.
3. File federally, using an intent to use application if you have not launched yet.
4. Add a state filing only where one of the scenarios above applies.
5. Calendar your maintenance deadlines on the day the registration issues.

And in either system, remember the underlying point: neither register will protect a name that already belongs to someone else. The search comes first.

On Skala, we guide clients through the entire trademark lifecycle, from clearance searches and filings to responding to USPTO office actions and enforcing rights against infringers. Whether you are a startup choosing your first brand name or an established company expanding internationally, our team ensures your brand remains secure.