The fact is trademark rights in the U.S. have very little to do with the U.S. Patent & Trademark Office (USPTO). Trademark rights are provided by federal statute in the U.S. and, specifically, by The Lanham Act, 15 U.S.C. §§ 1051 et seq. Importantly, the statute not only allows for protection of trademarks registered with the USPTO but it also provides virtually the same protection for trademarks that are not registered. Sure, if you register your trademark with the USPTO you get a presumption of validity if you ever file suit to enforce your rights in federal court. But less than 1% of trademark owners can afford the steep cost of about $300,000 in lawyer fees to do so. Accordingly, for 99% of trademark holders the presumption of validity in federal court really isn’t a benefit at all.
Returning to The Lanham Act, you can enforce your unregistered trademark just like a registered trademark provided that you can establish (1) it was in use prior to the alleged infringing trademark and (2) it is otherwise entitled to trademark protection (i.e., is distinctive and not descriptive). Now here’s where it gets interesting. Over the years one of the greatest shortcomings of the federal registration system has been that it lacks a manner to verify actual use of trademarks registered with the USPTO. Sure, they require a sample of use to secure your registration. But should you ever attempt to enforce it you will still need to provide evidence of actual use of your trademark in commerce by your claimed date of first use. In short, merely owning a federal trademark registration is not enough. You have to be able to prove your actual use of the trademark.
Today, however, a technological advancement can provide independent verification of your use, use that is, or will soon be, accepted by all courts in the United States. That advancement is an NFT Trademark secured on the block chain and it is now available to further secure your trademark rights!