Before adopting a trademark you should invest in a trademark search to identify potentially competing claims to the mark. Rights in trademarks generally are based on priority of use. The few hundred dollars you spend on a search will be worth every cent if the expenditure saves you from having to change a name or a mark down the road. Generally, descriptive terms cannot function as trademarks immediately upon use. Trademarks should not be descriptive of the goods or services to which they apply and they should be as remote as possible from other trademarks used in the industry.
Trademarks can exist either by operation of common law or by way of a state or federal registration.
In all cases, the most important concept is that of priority of use. In other words, it is the first user of a mark who, in most cases, gets to claim and keep a trademark as its own. The second user, even if he, she or it innocently and independently created the same or a similar trademark, is basically out of luck. The law is that trademark rights can only arise from actual use of a mark in commerce. However, under the Trademark Law Revision Act, which became effective in November 1989, unused trademarks can now be reserved for future use.