Cecily Zamora
Common law trademark rights are protections that arise from using a trademark in commerce. These rights are geographically limited to the area where the trademark is used and where the products are known by that mark. Common law trademarks are unregistered trademarks, and the rights go to the first user of the mark. The owner of a common law trademark can enforce their rights against competitors to prevent them from stealing goodwill and can even sue for trademark infringement. However, common law trademark rights are not as easily enforced as federal trademarks, and the only way to truly strengthen these rights is by attaining a federal registration.
| Characteristics | Values |
|---|---|
| Definition | Trademarks that are used in trade but are not registered |
| Protection | Protects against unfair competition and trademark infringement |
| Geographic scope | Limited to the geographic area where the trademark is used |
| Registration | Not required but recommended |
| Symbol | TM |
| Enforceability | Must be enforced to keep the trademark viable |
| Transferability | Can be transferred by registering with the USPTO |
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What You'll Learn
- Common law trademark rights are obtained by using the trademark in commerce
- Common law trademarks are geographically restricted to where they are used
- Common law trademark rights are automatic but limited
- Common law trademarks can be enforced against competitors
- Common law trademark rights can be strengthened by federal registration
Common law trademark rights are obtained by using the trademark in commerce
Common law trademark rights are obtained by using a trademark in commerce. These rights are automatic protections that arise from using a trademark in commerce and can be obtained without registering a trademark with a governmental agency. Trademarks are words, phrases, symbols, or sounds that identify your business. They can include business names, product names, logos, and taglines.
To obtain common law trademark rights, you simply need to use the trademark in association with your business or product. There is no application process or fees associated with attaining a common law mark. For example, if you own a candy shop in California and have been operating under the same name for years, common law rights will prevent other candy stores in your area from using the same name due to unfair competition statutes.
However, it is important to note that common law trademark rights are geographically limited. They only apply to the area where the trademark is used. For instance, while a common law trademark may prevent a similar business from operating under the same name in Los Angeles, it would not prevent a business with the same name from opening in San Francisco or other areas outside of your immediate locale.
To declare ownership of a common law trademark, you can add a superscript "TM" to your trademark. This symbol notifies others of your trademark rights and can deter competitors from using your trademarks. However, it is your responsibility to enforce your common law trademark rights. If you fail to police your trademark and take action against infringers, you could lose your rights.
While common law trademark rights provide basic local protection, they have limitations. They do not offer nationwide protection or the same level of enforceability as a federal trademark registration. To strengthen your common law trademark rights, you can register your trademark with the U.S. Patent and Trademark Office (USPTO). This provides additional protections, including nationwide protection and the right to sue for damages in case of infringement.
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Common law trademarks are geographically restricted to where they are used
Common law trademark rights are territorial in nature and linked to their original use in the marketplace. They are restricted to the geographic area where the trademark is used. For instance, if a product is sold only in Southern California, a common law trademark may prevent another business from selling a similar product under a similar name in Los Angeles. However, it will not prevent a competitor from using the same name in San Francisco or elsewhere in Northern California.
These unregistered trademarks are established through the actual use of a mark in commerce rather than through a formal registration process. Common law trademark rights are automatic protections that arise from using a trademark in commerce. They are afforded to a user when the mark is used in connection with goods or services, regardless of whether the use is intrastate or interstate.
The owner of a common law trademark will have protection within the geographical area and also within any "natural zone of expansion". This "natural zone of expansion" is determined by factors such as previous business activity, previous expansion or lack thereof, dominance of contiguous areas of use, presently planned expansion, and possible market penetration.
While common law trademarks provide local protection for a business, they have regional restrictions and lack enforceability, making them inadequate as a long-term solution. The only way to truly protect a common law trademark is by making it a federal registration.
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Common law trademark rights are automatic but limited
Common law trademark rights are automatic protections that arise from using a trademark in commerce. They are called "common law" because they are not governed by statute but instead by a judicially created scheme of rights governed by state law.
Common law trademark rights are obtained simply by using the trademark in association with your business or product. This can include business names, product names, logos, taglines, and phrases. These rights are not as easily enforced as federal trademarks and 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. If another coffee retailer begins to market a different blend in New York under the same name, there would be no trademark infringement.
Since there is no single database of common law trademarks, it may be difficult to provide notice of your common law rights to others who have never purchased your goods or services. Competing businesses may begin to use similar marks because they have no knowledge of your unregistered trademark. As such, common law trademark enforcement is up to the trademark owner. If you don't take steps to prevent others from using your marks, you could lose your trademark rights.
The only way to truly strengthen your common law rights is by attaining a federal registration. This provides national protection and extra security for your company, especially in a growing online marketplace. It also gives you certain legal presumptions that can shift the burden of proof to your adversary.
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Common law trademarks can be enforced against competitors
Common law trademark rights are automatic protections that arise from using a trademark in commerce. These rights are limited to the geographic area in which the trademark is used. For example, if you sell a product only in southern California, your common law trademark may prevent another business from selling the same type of product under a similar name in Los Angeles. However, you will not be able to prevent a competitor from setting up shop with your name in San Francisco or elsewhere in northern California.
To enforce your common law trademark rights, you can use the ™ symbol, which signifies that you claim common law trademark rights. This can deter competitors from using your trademarks on their goods or services. However, it is important to note that common law trademark enforcement is up to the trademark owner. If you don't take steps to prevent others from using your marks, you could lose your trademark rights. Enforcement may involve taking legal action if you learn that another business in your area is using your trademark. In this case, a trademark lawyer can advise you on the appropriate steps to take.
While common law trademarks provide some basic local protection for your business, they have regional restrictions and are not as easily enforceable as federal trademarks. As your business grows, national protection of your brand and product becomes a priority, and investing in a federal trademark registration is recommended. Federal trademarks provide the right to sue infringers and can help you recover fees if infringement litigation occurs. Obtaining a federal registration also discourages other parties from using similar marks, potentially preventing conflict before it happens.
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Common law trademark rights can be strengthened by federal registration
Common law trademark rights are automatic protections that arise from using a trademark in commerce. 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. Common law trademark rights can be obtained by simply using the trademark in association with your business or product.
Federal registration also makes it easier to apply for foreign trademark registrations or to stop the importation of infringing goods. Before using a trademark or applying for federal trademark registration, it's important to conduct a thorough trademark search to ensure that your mark does not infringe on someone else's federal, state, or common law trademarks. Federal registration will be denied if your mark is confusingly similar to another registered trademark.
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 priority, and investing in a federal trademark registration is a wise business decision.
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Frequently asked questions
Common law trademark rights are protections that arise from using a trademark in commerce. They are limited to the geographic area in which the mark is used.
You get common law trademark rights by simply using your trademark in your business. It can be a business name, product name, logo, or tagline.
To transfer common law trademark rights, you must register your trademark with the United States Patent and Trademark Office (USPTO). This transforms your limited common law rights into more robust federal protection.
Registering your common law trademark provides nationwide protection and extra security for your company. It also grants you the right to use the registered trademark symbol (®) and the option to record your registration with US Customs to prevent the importation of infringing goods.
