Common Law Mark: Bar Exam Registration

A common law trademark is a trademark established through use in commerce in a specific geographical area. Unlike federal trademarks, there is no application process or fees associated with attaining a common law mark. However, common law trademarks are limited to the geographic location(s) in which the business operates. This means that federal registration provides the greatest level of protection for a brand or business.

Common law trademarks are limited to the geographic location(s) in which you do business

Common law trademarks are established solely through use in commerce in a specific geographical area. There is no application or registration process, and no associated fees. This means that business names, logos, and phrases that are regularly used, even without federal registration, can be considered common law trademarks.

The rights associated with common law trademarks are more limited and less easily enforced than federal trademarks. Federal trademarks provide nationwide protection and can be used regardless of business location. They also provide additional benefits, such as the right to use the ® symbol for deterrence and the ability to sue infringers.

However, there are some cases in which a common law mark may prevail over a federal registration. This typically occurs when the common law trademark has an earlier, proven first-use date in a certain region. Common law trademarks can also hinder a federal application if a proper clearance search was not performed prior to submission. Therefore, it is important to conduct a thorough clearance process, including deep interest searches, industry-specific directory searches, business filing searches, social media searches, and domain searches, to ensure that a new trademark does not conflict with an existing common law mark.

Common law trademarks are obtained simply by using the trademark in association with your business or product

A common law trademark is a trademark established solely through use in commerce in a specific geographical area. Business names, logos, and phrases that are regularly used can all be considered common law trademarks, even if they have never been federally registered. The rights associated with common law trademarks are regionally limited and not as easily enforced as a federal trademark, but common law marks are permitted to use the ™ symbol.

While federal trademarks have some obvious advantages over a common law trademark, there are some cases in which a common law mark may prevail over a federal registration. This typically occurs because the common law trademark has an earlier, proven first-use date that can combat the federal trademark’s rights in a certain region. Common law trademarks can also hinder a federal application if a proper clearance search was not performed prior to the application’s submission.

The only way to truly protect your common law trademark is by making it a federal registration. As your business grows, national protection of the goodwill behind your brand and product becomes a top priority, and investing in a federal trademark registration is a wise business decision. Federal trademarks are able to use the Ⓡ symbol for deterrence, provide the right to sue infringers, and can help you recover fees if infringement litigation does occur.

Common law trademarks can be federally registered to provide greater protection

A common law trademark is a trademark established solely through use in commerce in a specific geographical area. Business names, logos, and phrases that are regularly used can all be considered common law trademarks, even if they have never been federally registered.

Common law trademarks provide some basic local protection for your business, but they are limited to the geographic location(s) in which you actually do business. They are also not as easily enforced as a federal trademark. The only way to truly protect your common law trademark is by making it a federal registration.

Federal trademarks are able to use the ® symbol for deterrence, provide the right to sue infringers, and can help you recover fees if infringement litigation does occur. They also provide the greatest level of protection for your brand and your business.

While federal trademarks have some obvious advantages over a common law trademark, there are some cases in which a common law mark may prevail over a federal registration. This typically occurs because the common law trademark has an earlier, proven first-use date that can combat the federal trademark’s rights in a certain region.

Common law trademarks can be established by foreign businesses through actual use of the mark in commerce in the United States

However, it is important to note that common law trademarks have regional restrictions and are not as easily enforceable as federal trademarks. Federal trademarks provide the greatest level of protection for a brand and business and are able to use the Ⓡ symbol for deterrence, provide the right to sue infringers, and can help recover fees if infringement litigation occurs.

In some cases, a common law mark may prevail over a federal registration if it has an earlier, proven first-use date in a certain region. To avoid issues with an existing common law mark, a clearance process for new trademarks should include deep interest searches, industry-specific directory searches, business filing searches, social media searches, and a domain search.

Therefore, while common law trademarks can be established by foreign businesses through actual use of the mark in commerce in the United States, it may be wise to invest in a federal trademark registration for better protection.

Common law trademarks can be enforced through the use of the ™ symbol

While federal trademarks have some obvious advantages over a common law trademark, there are some cases in which a common law mark may prevail over a federal registration. This typically occurs because the common law trademark has an earlier, proven first-use date that can combat the federal trademark’s rights in a certain region. Common law trademarks can also hinder a federal application if a proper clearance search was not performed prior to the application’s submission.

The only way to truly protect your common law trademark is by making it a federal registration. As your business grows, national protection of the goodwill behind your brand and product becomes a top priority, and investing in a federal trademark registration is a wise business decision. Federal trademarks are able to use the Ⓡ symbol for deterrence, provide the right to sue infringers, and can help you recover fees if infringement litigation does occur.

Frequently asked questions