What is an essential characteristic of trademark protection?

Trademark protection fundamentally hinges on the requirement of active use in commerce. This means that in order for a trademark to be protected, it must be used in a manner that identifies and distinguishes the goods or services of one party from those of others. This usage creates a public association between the mark and the source of the goods or services, which is essential for establishing and maintaining trademark rights.

Active use in commerce is critical as it embodies the underlying principle of trademarks: to prevent consumer confusion about the source of goods and services. By using a trademark in the marketplace, a business demonstrates its claim to the mark, fosters brand recognition, and builds goodwill among consumers. Therefore, without such usage, a trademark may not acquire the legal protection that is intended to safeguard the interests of both the brand owner and the consumers.

In contrast, trademarks can exist without registration, as common law rights can develop through actual use. While registration can enhance protections, there are many cases where unregistered trademarks are afforded protection based on their established use. Additionally, trademark law is not solely determined by international agreements, nor is it automatic for all brands, as these aspects involve different concepts within the broader scope of intellectual property law.