Executive Summary
A company's trademarks are often among its most valuable assets. A name, logo, slogan, product configuration, or other source identifier can embody years of goodwill and become inseparable from the reputation of the business itself. Yet many businesses still approach trademark protection as a discrete administrative task: select a name, file an application with the United States Patent and Trademark Office ("USPTO"), obtain a registration, and move on.
That approach increasingly understates both the value and complexity of trademark protection.
The U.S. trademark system has undergone meaningful changes in recent years. The USPTO has modified its filing procedures and fee structure, increased efforts to eliminate fraudulent and unused registrations, and continued implementing tools created by the Trademark Modernization Act. At the same time, decisions from the U.S. Supreme Court and federal appellate courts have reshaped important aspects of trademark law involving remedies, international infringement, parody, expressive uses, and the constitutional limits of restrictions on registration.
For businesses, the practical lesson is straightforward: trademark registration is best understood as one component of an ongoing brand-protection program. Effective trademark strategy now requires careful clearance before filing, precise prosecution before the USPTO, accurate documentation of use, continued monitoring of third-party activity, disciplined maintenance of registrations, and strategic enforcement when infringement occurs.
This paper examines the current U.S. trademark landscape and identifies practical steps businesses can take to build and preserve valuable trademark portfolios.
I. The Business Case for Trademark Protection
Trademarks perform a deceptively simple function: they tell consumers where goods or services come from.
But commercially, they can do much more.
A successful trademark can consolidate the goodwill of a business into an identifiable asset. As recognition increases, consumers may associate a particular name or logo with quality, reputation, customer experience, or other characteristics of the company offering the product or service.
For that reason, trademark rights frequently become important in acquisitions, licensing arrangements, franchising, financing transactions, investment rounds, and business succession planning.
Federal registration is not required to obtain every trademark right in the United States. Rights generally arise from use, and unregistered marks can receive protection under federal and state law. Federal registration, however, provides significant advantages, including nationwide constructive notice and important evidentiary benefits in litigation. The Supreme Court recently reiterated these principles in Vidal v. Elster, 602 U.S. 286 (2024).
A sophisticated trademark strategy therefore begins well before an application is submitted to the USPTO.
II. Registration Begins With Clearance, Not Filing
One of the most expensive trademark mistakes occurs before the USPTO ever receives an application.
A business develops a name, invests in branding, purchases domains, builds a website, orders signage, launches advertising—and only afterward discovers an earlier trademark that presents a significant infringement or registration problem.
The better approach is to conduct appropriate clearance before substantial investment in the brand.
A trademark clearance analysis should generally consider more than whether an identical federal registration exists. Trademark infringement turns primarily on likelihood of consumer confusion, meaning a problematic mark may differ in spelling, appearance, or wording while remaining legally significant.
Depending on the importance of the proposed brand, clearance may include searches of:
USPTO applications and registrations;
state trademark and corporate records;
internet and marketplace usage;
domain names;
social-media platforms;
industry publications and directories; and
potentially relevant common-law uses.
Clearance serves two related purposes. First, it evaluates the probability that the USPTO will refuse registration based on an existing mark. Second—and often more importantly—it evaluates whether adopting the mark could expose the business to an infringement claim.
Those questions overlap, but they are not identical.
A federal registration search should therefore be viewed as a starting point rather than a complete trademark clearance investigation.
III. The Current USPTO Registration Environment
The mechanics and economics of federal trademark registration changed materially in 2025.
The USPTO eliminated the former TEAS Plus and TEAS Standard application structure and replaced it with a base application fee of $350 per class for applications filed under Sections 1 and 44 of the Trademark Act.
The new system also creates financial incentives for applicants to submit complete, carefully drafted applications. Among other things, the USPTO may impose additional per-class fees for applications containing insufficient information or using customized descriptions of goods and services rather than entries from the USPTO's Trademark ID Manual.
This seemingly administrative change has an important strategic implication: careful application preparation has become more economically important.
Poorly planned descriptions of goods and services can increase filing costs and potentially complicate prosecution. Applicants should determine before filing which goods and services actually require protection, which international classes apply, and whether descriptions from the USPTO's identification manual adequately cover the business's activities.
The USPTO has simultaneously made progress in reducing examination delays. In May 2026, the agency reported that first-action pendency had fallen to approximately 4.45 months during the first half of fiscal year 2026, compared with 5.6 months previously. Overall processing time had fallen from 11.7 months in fiscal year 2025 to approximately 10 months during the first half of fiscal year 2026.
For applicants, this represents a meaningful improvement after several years in which trademark examination backlogs became a significant practical concern.
IV. Registration Is Not the Finish Line
Obtaining a registration does not permanently secure a trademark.
Trademark rights are fundamentally tied to continued use, and federal registrations require periodic maintenance.
Generally, a federal registrant must submit a declaration of continued use between the fifth and sixth years following registration and renew the registration during the tenth year, with subsequent renewals every ten years. Eligible registrants may also seek incontestable status under Section 15 of the Lanham Act after satisfying the statutory requirements.
The cost of maintaining registrations has also increased. Following the USPTO's 2025 fee changes, for example, the electronic fee for a Section 8 declaration increased from $225 to $325 per class, while the Section 9 renewal fee increased from $300 to $325 per class.
But docketing deadlines is only one part of post-registration protection.
Businesses should periodically audit their trademark portfolios to determine:
whether each registered mark remains in use;
whether it is being used for all goods and services identified in the registration;
whether ownership information remains accurate;
whether new products, services, logos, or sub-brands require additional applications;
whether licensing arrangements contain appropriate quality-control provisions; and
whether third parties are adopting confusingly similar marks.
This turns trademark maintenance from an administrative calendar exercise into an intellectual-property management system.
V. The Federal Register Is Receiving More Scrutiny
One of the most significant developments in modern trademark administration has been the government's effort to improve the integrity of the federal trademark register.
The Trademark Modernization Act of 2020 created streamlined expungement and reexamination proceedings through which unused registrations can be challenged without requiring a traditional contested cancellation proceeding before the Trademark Trial and Appeal Board.
Reexamination can target registrations where a mark was not actually in use for particular goods or services as of the legally relevant date. Expungement provides a mechanism for challenging registrations on the ground that a trademark was never used in commerce for some or all of the identified goods or services.
These procedures have increased the importance of maintaining credible records of trademark use.
The USPTO's enforcement efforts have become particularly aggressive. In May 2026, the agency announced that it had issued 11 administrative orders during the preceding six months targeting approximately 10,500 trademark applications and registrations. The agency also reported that during the prior fiscal year it sanctioned several foreign filing firms and removed more than 52,000 invalid applications and registrations.
The targeted conduct included unauthorized practice of law, improper signatures, false information, impersonation of the USPTO, and fabricated registration requirements.
The development has consequences for legitimate trademark owners as well.
Applications should accurately reflect actual ownership and use. Specimens should demonstrate genuine commercial use rather than merely being created to obtain registration. Registrants should also retain records capable of substantiating use if a registration is later challenged.
VI. Trademark Fraud and Scams Are Becoming a Brand-Protection Issue
Trademark owners face another growing problem: increasingly sophisticated solicitations and impersonation schemes.
Trademark records are public. Once an application is filed, bad actors can obtain information about the applicant and the mark and use it to create official-looking invoices, renewal notices, emails, websites, and telephone solicitations.
The USPTO has specifically warned about spoofed websites and telephone numbers, misleading trademark services, and communications impersonating government agencies.
Trademark owners should therefore establish internal procedures for handling trademark-related communications.
Employees responsible for accounts payable, marketing, legal affairs, or corporate administration should understand that an official-looking trademark invoice does not necessarily originate from the USPTO.
A useful rule is to verify questionable communications against the official USPTO record before making payment or providing sensitive information. The USPTO states that official correspondence relating to an application or registration is available through its Trademark Status and Document Retrieval system.
For companies with substantial trademark portfolios, centralized management of trademark correspondence can materially reduce this risk.
VII. Recent Supreme Court Decisions Are Reshaping Trademark Enforcement
Several recent Supreme Court decisions have important implications for businesses and trademark owners.
A. Dewberry Group v. Dewberry Engineers — Limits on Profit Awards
In Dewberry Group, Inc. v. Dewberry Engineers Inc., 604 U.S. 321 (2025), the Supreme Court addressed the calculation of an infringer's profits under the Lanham Act.
The lower courts had entered an approximately $43 million profits award that effectively incorporated profits generated by affiliated entities of the named defendant.
The Supreme Court unanimously rejected that approach. Because the Lanham Act permits recovery of the "defendant's profits," the Court held that separately incorporated affiliates could not simply be treated as though they were the defendant for purposes of calculating the award.
The decision does not eliminate substantial monetary remedies for trademark infringement. It does, however, emphasize the importance of corporate structure and defendant selection when developing an enforcement strategy.
For trademark owners contemplating litigation, identifying the entities responsible for the allegedly infringing activity—and understanding where the resulting revenue and profits actually reside—may now be particularly important.
B. Abitron v. Hetronic — Limits on Extraterritorial Enforcement
Global commerce has made trademark infringement increasingly international. A website located abroad can reach U.S. consumers instantly, and manufacturing, distribution, and sales may occur across several countries.
But U.S. trademark law does not necessarily follow an infringer everywhere.
In Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023), the Supreme Court significantly limited the extraterritorial application of key provisions of the Lanham Act.
The litigation involved approximately $96 million in damages associated with worldwide sales. The Supreme Court held that Sections 1114(1)(a) and 1125(a)(1) extend only to claims involving infringing "use in commerce" within the United States.
For companies operating internationally, Abitron underscores the limitations of relying exclusively on a U.S. registration.
A business expecting meaningful sales or expansion abroad should consider international trademark protection early rather than assuming a U.S. registration will provide adequate global enforcement rights.
C. Jack Daniel's v. VIP Products — Trademark Use, Parody, and the First Amendment
The intersection between trademarks and expressive speech continues to develop.
In Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), the Supreme Court considered a dog toy that mimicked the appearance of a Jack Daniel's whiskey bottle while replacing elements of the branding with dog-related humor.
The Supreme Court held that special First Amendment protection applicable to certain expressive works does not automatically displace ordinary trademark analysis when the challenged trademark is being used as a designation of source for the defendant's own goods.
The litigation did not end there.
On remand, Jack Daniel's prevailed on a dilution theory, but in August 2026 the Ninth Circuit reversed that ruling. The appellate court concluded that the evidence did not establish that the "Bad Spaniels" parody was likely to tarnish Jack Daniel's famous marks.
The continuing litigation illustrates an important distinction: parody is neither automatically protected nor automatically infringing.
Context matters.
Courts must still examine how the challenged designation functions, whether consumers are likely to view it as identifying source, whether confusion is likely, and—where dilution is alleged—whether the statutory requirements for dilution have actually been established.
D. Vidal v. Elster — Constitutional Limits and Registrability
The Supreme Court revisited the relationship between trademark registration and the First Amendment in Vidal v. Elster, 602 U.S. 286 (2024).
The applicant sought registration of "TRUMP TOO SMALL" without Donald Trump's consent. Section 2(c) of the Lanham Act generally prohibits registration of a mark containing a name identifying a particular living person without that person's written consent.
The Supreme Court upheld the refusal.
The decision is significant partly because it follows earlier cases in which the Court invalidated other restrictions on trademark registration on First Amendment grounds. Elster demonstrates that not every content-based limitation on registration is necessarily unconstitutional and reinforces the historical importance of restrictions concerning another person's name.
VIII. Monitoring Is Becoming as Important as Registration
The USPTO does not police the marketplace for trademark owners.
A registration may provide powerful enforcement rights, but the owner remains responsible for identifying potentially infringing activity.
That task has become more difficult as commerce has migrated online.
Potential infringement may now appear through:
competing websites;
social-media accounts;
online marketplaces;
app stores;
domain registrations;
paid search advertisements;
counterfeit products;
social-media advertising; and
newly filed USPTO applications.
A modern monitoring program should therefore operate on at least two levels.
First, businesses should monitor new trademark applications that may conflict with important marks. Early detection can permit the owner to submit a letter of protest in appropriate circumstances or oppose an application after publication.
Second, businesses should monitor actual marketplace use.
Not every similar trademark requires litigation. Enforcement decisions should consider the strength of the mark, similarity of the parties' goods and services, geographic overlap, evidence of actual confusion, commercial importance, litigation cost, and the risk of unintentionally increasing publicity for a minor infringer.
The objective is not maximal enforcement.
It is strategic enforcement.
IX. A Practical Trademark Protection Lifecycle
Businesses can increasingly benefit from treating trademarks as assets with a defined lifecycle rather than isolated legal filings.
An effective framework can be summarized as:
CREATE → CLEAR → REGISTER → USE → MONITOR → ENFORCE → MAINTAIN → EXPAND
Create. Develop brands that are legally protectable as well as commercially attractive.
Clear. Investigate potentially conflicting federal registrations, applications, and marketplace uses before making substantial investments.
Register. Prepare applications strategically, including appropriate ownership, filing basis, classes, and descriptions of goods and services.
Use. Maintain genuine commercial use consistent with the registration and preserve evidence documenting that use.
Monitor. Watch federal filings and the marketplace for potentially conflicting uses.
Enforce. Address material infringement proportionately through marketplace procedures, correspondence, negotiated resolutions, administrative proceedings, or litigation when appropriate.
Maintain. Calendar maintenance deadlines, periodically audit goods and services, and ensure ownership records remain current.
Expand. Revisit the portfolio as the company introduces new brands, enters new markets, expands internationally, or acquires other businesses.
This lifecycle approach aligns trademark protection with the commercial development of the underlying brand.
X. Five Practical Steps Businesses Should Take Now
The changing trademark environment suggests several immediate priorities.
1. Audit existing registrations.
Businesses should compare their registrations against their current products and services. Registrations containing obsolete goods or services should receive particular attention before maintenance filings are submitted.
2. Review important unregistered brands.
Companies often accumulate product names, slogans, logos, and service lines without considering whether additional registrations are appropriate. A periodic brand inventory can identify valuable but unprotected assets.
3. Establish trademark monitoring.
At minimum, businesses with valuable brands should consider monitoring newly filed federal applications. Broader marketplace monitoring may be appropriate for particularly important marks.
4. Centralize trademark communications.
USPTO correspondence, renewal solicitations, invoices, domain notices, and enforcement correspondence should be routed through designated personnel or trademark counsel to reduce the risk of missed deadlines and fraud.
5. Align trademark strategy with business strategy.
Trademark planning should occur before major product launches, rebranding initiatives, acquisitions, geographic expansion, franchising, licensing, or international market entry—not afterward.
Conclusion
The modern trademark landscape rewards businesses that treat brand protection as an ongoing process.
Federal registration remains a foundational component of that process, but a registration alone cannot clear a brand before adoption, identify new infringers, document continued use, prevent scams, preserve international rights, or decide when enforcement makes commercial sense.
Recent changes at the USPTO and recent Supreme Court decisions reinforce the same principle: valuable trademarks require active management.
For growing businesses, the strongest approach is therefore not simply to register trademarks. It is to develop a coordinated system for identifying, securing, monitoring, maintaining, and enforcing the intellectual-property rights associated with the company's brands.
When managed appropriately, a trademark portfolio can become more than a collection of government registrations. It can become a durable collection of business assets that protects goodwill, facilitates expansion, supports transactions, and preserves the value of a company's reputation as the business grows.
This publication is provided for general informational purposes only and does not constitute legal advice. Trademark rights and enforcement strategies depend on the particular facts and circumstances involved. Businesses should consult qualified legal counsel regarding specific trademark matters.