“[T]rademark or service mark ownership is not acquired by federal or state registration. Rather, ownership rights flow only from prior appropriation and actual use in the market.”
Trademarks are strange. They are, in essence, opportunity. They are the opportunity to associate the producer or provider of a good or service with that product. That association -- a name, figure, sound, logo, or some combination -- becomes "owned" only to the extent that the association is developed. Service mark ownership is not acquired by federal or state registration. Rather, ownership rights flow only from prior appropriation and actual use in the market. See 1 J. McCarthy, Trademarks and Unfair Competition, § 16:5, at 733 (2d ed. 1984).
Once, an Arizona company who had registered and used the term "HOGIE"
for the sandwich tried to prevent 7/11 from using that term. The Court
properly found that administrative approval of registration is not
conclusive for establishing the validity of a mark. Hoagie, of course,
is generic: it is the good itself, not the association with the producer
(names the sound the same are the same for trademark purposes). Raizk v. Southland Corp., 121 Ariz. 497, 591 P.2d 985
(Ariz.App., 1978). And, of course, the rule in trademark is use or lose it.