Cameron Miranda
Common law trademark rights are protections that arise from using a trademark in commerce. They are not governed by statute but are instead developed under a judicially created scheme of rights governed by state law. These rights are limited to the geographic area in which the mark is used, and it is the responsibility of the trademark owner to police their trademark and enforce their rights. While federal registration is not required to establish common law rights, it does provide trademark owners with substantial additional rights and protections. This includes the right to sue for damages if someone infringes on your trademark, which is not available under common law.
| Characteristics | Values |
|---|---|
| Registration | Not required to establish common law rights |
| Geographic reach | Protection limited to the geographic area in which the mark is used |
| Symbol | TM |
| Registration with USPTO | Additional protections and rights, including protection throughout the country |
| Rights | Go to the first user |
| Enforcement | Up to the trademark owner |
| Protection | Protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services |
| Infringement damages | No right to common law trademark infringement damages |
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What You'll Learn
- Common law trademark rights are acquired by using a trademark in commerce
- Rights are limited to the geographic area in which the mark is used
- Owners are responsible for policing their trademark
- Common law trademark rights can be strengthened by registration
- Common law trademark rights do not give the right to sue for damages
Common law trademark rights are acquired by using a trademark in commerce
Common law trademark rights are acquired automatically when a business uses a name or logo in commerce and are enforceable in state courts. These rights are limited to the geographic area in which the mark is used. For example, if a coffee blend is sold under the name "Blaster" in California only, the trademark rights to that name exist only in California. This means that another company could sell a product under the same name in another state without infringing on the original company's trademark rights.
To declare ownership of a common law trademark, a superscript "TM" symbol can be added to the mark. This symbol notifies others of trademark rights and can deter competitors from using the trademark. It is important to note that common law trademark enforcement is the responsibility of the trademark owner. This includes policing" the trademark to ensure that no one else is using it and taking action if another business is found to be using the trademark.
While common law trademark rights provide some protection, registering a trademark with the USPTO offers additional rights and protections, including protection throughout the country and the right to use the registered trademark symbol (®). Registering a trademark can also make it easier to enforce trademark rights and deter infringement.
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Rights are limited to the geographic area in which the mark is used
Common law trademark rights are territorial and limited to the geographic area in which the mark is used. These rights are acquired automatically when a business uses a name or logo in commerce within a particular geographic area. The first user of a mark in commerce acquires common law rights to it in that area.
For example, if a coffee blend is sold under the name "Blaster" in California only, the trademark rights to that name exist only in California. If another coffee retailer begins to market a different blend in New York under the same name, there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend in California, the California company's common law rights to the mark would prevent them from entering the California market.
To declare ownership of a common law trademark, one can add a superscript "TM" to it. This notifies others of trademark rights and can deter copiers and competitors from using the trademark. It is important to note that common law trademark enforcement is the responsibility of the trademark owner. Failing to police a common law trademark may lead to losing infringement protection.
Registering a trademark with the USPTO provides additional protections and rights, including protection throughout the country, not limited to a specific geographic area. It also allows for the use of the registered trademark symbol (®) and provides the right to bring a lawsuit concerning the trademark in federal court.
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Owners are responsible for policing their trademark
Establishing common law trademark rights is not governed by statute but rather a judicially created scheme of rights governed by state law. While federal registration is not required to establish common law rights, it is almost always recommended as it gives trademark owners additional rights not available under common law. Common law trademark rights are limited to the geographic area in which the mark is used.
There are several ways to engage in trademark policing. One way is to manually and diligently search the web for any improper use of your registered trademarks. Another way is to search the online database of the United States Patent and Trademark Office (USPTO) or similar databases for trademark applications and registrations. However, due to the time and financial investment required, most companies opt for a third-party monitoring service. A more straightforward way to find potential infringers is to look at new trademark applications filed with the USPTO. Trademark applications are arguably more important to police because if those applications were to register, the owner would also have presumed nationwide rights.
Once you have determined how you intend to use your trademarks, the next step is to monitor the marketplace for infringement on your trademark rights. This includes monitoring third-party use of your brand's active trademarks to detect any infringement. If you come across a potential infringer, you should contact them to make them aware of your common law trademark. This can be done through a cease-and-desist letter to ask them to stop using the mark.
While federal litigation is the most effective way to get someone to stop using your trademark, it is also the most formal, expensive, and lengthy method. As such, it is typically a last resort when it comes to trademark enforcement.
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Common law trademark rights can be strengthened by registration
Common law trademark rights are established by using a mark in commerce in a particular geographic area. The first user of the mark in that area owns the common law rights to it. Common law trademark rights are not governed by statute but by a judicially created scheme of rights governed by state law.
Common law trademark rights are limited to the geographic area in which the mark is used. For example, if a coffee blend is sold under the name "Blaster" in California only, the trademark rights to that name exist only in California. This means that if another coffee retailer begins to market a different blend in New York under the same name, there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend nationwide, they would find that the California company's common law rights to the mark would prevent them from entering the California market.
While common law trademark rights can be established without registration, registration with the United States Patent and Trademark Office (USPTO) provides additional protections and rights. Federal registration gives trademark holders the right to file a lawsuit in federal court to enforce their rights and use the ® symbol for deterrence. It also makes it easier to apply for foreign trademark registrations or to stop the importation of infringing goods. Registering a trademark with the USPTO gives trademark owners a legal presumption that they have the right to use the trademark nationwide and prevent others from using a similar mark for similar goods or services.
Additionally, federal registration provides the right to sue for damages if someone infringes on a trademark, which is not available under common law. Federal registration also shifts the burden of proof to any adversary claiming trademark rights, making it more difficult and expensive for them to prove their rights. Overall, federal registration strengthens common law trademark rights by providing nationwide protection, additional legal rights, and increased deterrence against potential infringers.
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Common law trademark rights do not give the right to sue for damages
Common law trademark rights are established through use, rather than being governed by statute. They are developed under a judicially created scheme of rights governed by state law. There is no requirement to register a trademark with the United States Patent and Trademark Office (USPTO) to establish common law rights, though it is strongly recommended as it brings substantial additional rights.
Common law trademark rights are limited to the geographic area in which the mark is used. For example, if a coffee blend is sold under the name "Blaster" in California only, the trademark rights to that name exist only in California. This means that another company could sell coffee under the same name in New York, but they would be prevented from selling in California.
Common law trademark rights begin when a mark is used in commerce in a particular geographical area. The first person to do this owns the common law rights to the mark in that area. To declare ownership, a superscript "TM" should be added to the mark. Common law trademark protection includes the right to stop someone else in the same geographic area from using the same mark if their use is likely to confuse consumers.
It is important to police a common law trademark, which means keeping track of whether anyone else is using it. Failure to do so may result in losing infringement protection. If another party is using a similar mark, they should be contacted and made aware of the existing common law trademark, often through a cease-and-desist letter.
While common law trademark rights do provide some legal protections, they do not give the right to sue for damages. Registering a trademark brings the additional right to sue for damages if someone infringes on the trademark. However, it is still possible to sue for trademark infringement with an unregistered trademark, as the Lanham Act allows for lawsuits based on unregistered trademarks. While federal lawsuits regarding unregistered trademarks are rare, it is possible to recover financial compensation and a judge may issue a trademark injunction to prevent the infringer from continuing their activities.
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Frequently asked questions
Common law trademark rights are protections that arise from using a trademark in commerce. They are not governed by statute but have been developed under a judicially created scheme of rights governed by state law.
Common law trademark rights are established automatically when a business uses a name or logo in commerce. To declare ownership of a common law trademark, you should add a superscript TM to it.
A common law trademark provides protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services before it is registered with the state or federal government. It is limited to the geographic area in which the mark is used.
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