A trademark comes into existence when a word, logo or other thing is used in commerce to identify the source of a product or service and distinguish it from others. In some countries, registration is necessary. In the United States, registration is not necessary. In the United States, a trademark arises automatically by use in commerce, provided the source identifier that is used is distinctive enough to distinguish the product or service from the same, similar or related goods or services from a different source. Stated more formally, trademark rights in the United States arise when:
(1) a word, logo, symbol or other thing
(2) is used in commerce
(3) to identify the source of a product or service,
(4) is distinctive, and
(5) is not likely to confuse consumers about the source of the product or service.
A trademark comes into being when all five of these criteria are met.