A trademark can be protected based on use if the mark has actually been used in commerce. The Trademark Application will include the date of first use in commerce and priority can be established by that date. A “specimen” must be included with the Trademark Application that shows the mark as used in commerce.
Determining Trademark Registrability
You can conduct a preliminary trademark search here. If the results of the preliminary search are favorable, you should still consider having a full search conducted at the US Patent and Trademark Office so that the results are based upon a complete data set and are current.
Once you have determined that a mark is not in use on the Internet and the corresponding domain name is available, you should have a trademark registrability search conducted at the United States Patent and Trademark Office. The registrability search will provide you with current information about existing trademark registrations and applications for trademark registration. It is usually not enough to rely upon the records available on the Internet as they are not as current as the public records available at the United States Patent and Trademark Office.
The legal fee, including the government filing cost for preparing and filing a trademark application for a single class of goods or services is $995.00.