Q: My mark (on product) is drawn w/ more design elements on the package. Should I trademark both?

A: Your best practice would be to separately register each variation of your trademark. However, with that said, the fundamental question that has to be answered is whether the use of the mark with the additional element would still have a reasonable likelihood of confusion with the mark without it--in other words, if you look at the mark with the add'l element is it still substantially similar to the one without it, or does the add'l element fundamentally change it? If the add'l element doesn't fundamentally change the overall mark, you are probably okay with the single registration for now (tho' I'd still recommend registering the alternative version at some point). Alternatively, if someone were to attempt to use ONLY the additional element that you have on the package, without the rest of the mark, would that be sufficient to create a reasonable likelihood of confusion? For example, if your mark was a chef, and on the package he was holding a very distinctively designed fork, would competitors be able to confuse customers by just displaying that distinctive fork? If so, you're going to want to register that alternative mark sooner rather than later.

Note, however, that registration is a different thing than gaining rights to a mark that you are already using. The rights technically arise from using the mark in commerce. However, registration gives you the ability to enforce your rights and a host of other advantages.

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