Kara Sears
Common law trademark rights are automatic protections that arise from using a trademark in commerce. They can be used to protect a symbol, logo, product name, or other words or marks that identify the source of goods or services. To declare ownership of a common-law trademark, you should add a superscript TM to it. However, common law trademark rights can be hard to enforce as there is no public record of your trademark or when your trademark use began. To obtain federal trademark registration, you must file an application with the USPTO. Registering a trademark with the USPTO gives you the legal right to sue third parties for infringement.
| Characteristics | Values |
|---|---|
| What is protected by common law? | Common law trademark rights protect a symbol, logo, product name, or other words or marks that identify the source of goods or services. |
| Who can use common law? | Common law trademark rights are automatic protections that arise from using a trademark in commerce. |
| How does common law protect your name? | Common law trademark rights go to the business that uses the trademark first. You can only enforce a common law trademark in the geographic area where the trademark is used. |
| How to declare ownership of a common law trademark? | To declare ownership of a common law trademark, you should add a superscript "TM" to it. |
| How to maintain common law infringement protection? | You maintain common law infringement protection as long as you continue to use the mark, and this protection includes the right to stop someone else in your same geographic area from using the same mark if their use is likely to confuse consumers. |
| How to protect your common law trademark? | You are responsible for "policing" the trademark, which means keeping track of whether anyone else is using it. Failing to police your common law trademark may lead to losing your rights to infringement protection. |
| How to gain the right to sue for damages under common law? | Common law does not give the right to sue for damages if someone infringes on your trademark. To gain this right, you must register your trademark. |
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What You'll Learn
Common law trademark rights: How to obtain them
Common law trademark rights are automatic protections that arise from using a trademark in commerce. If you have a business name, product name, tagline, or logo that you use regularly, you may have common law trademark rights, even without registering your trademarks with any governmental agency. Trademarks are words, phrases, symbols, or sounds that identify your business.
Common law trademark rights are limited to the geographic area in which the mark is used. For example, if a product is sold under a brand name only in California, the common law trademark rights exist only in California. If another company starts selling a product under the same name in New York, there would be no trademark infringement. However, if the New York company attempted to sell its product in California, the company with the common law rights could prevent them from doing so.
To obtain common law trademark rights, you simply need to start using the mark in commerce in a particular geographical area. The first person to do so owns the common law rights to the mark in that area. To declare ownership of a common law trademark, you should add a superscript "TM" to it. It is recommended to conduct a thorough trademark search before using a trademark to ensure that your mark does not infringe on someone else's federal, state, or common law trademarks.
While common law trademark rights can be obtained without registration, registering a trademark with the USPTO provides additional protections and rights. These include protection throughout the country, the right to use the registered trademark symbol (an R in a circle), and the right to sue for damages if someone infringes on your trademark.
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How to enforce common law trademark rights
Common law trademark rights are protections that arise from using a trademark in commerce. They are independent of statutory registration requirements. In the US, trademark rights are generally given to the first party to use a mark in a specific geographical area.
Common law trademarks can be difficult to enforce due to the lack of a public record of the trademark or its usage history. This can make it challenging to prove ownership of the mark, which could be easier with a registered trademark. To enforce common law trademark rights, it is important to take action if another business in your area is using your trademark. This includes sending a cease-and-desist letter or initiating trademark litigation, as common law trademark owners can sue for infringement with certain geographical limitations.
To strengthen your common law trademark rights, consider registering your trademark with the United States Patent and Trademark Office (USPTO). This provides a legal presumption of the right to use the trademark nationwide and prevents others from using similar marks. It also allows trademark holders to use the ® symbol for deterrence and provides the right to sue for infringement damages.
Before registering, conduct a trademark search to identify potential barriers to using your trademark, such as similar registered trademarks or existing common law trademarks. This can include searching business directories, phone directories, the internet, local newspapers, public records, and industry publications.
While common law trademarks provide basic local protection, they have regional restrictions and limited enforceability. To truly protect your trademark, consider federal registration, especially if you plan to expand your business nationwide.
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Common law trademark search
A common law trademark search is an important step in the process of establishing a trademark. It can help identify potential barriers to using your desired name, logo, or other trademarks and increase the chances of a successful registration with the United States Patent and Trademark Office (USPTO).
A common law trademark search typically involves three components: searching the USPTO database, conducting a state trademark search, and performing a general search. The USPTO database contains federally registered trademarks, which can help determine if your mark is confusingly similar to another registered trademark. Federal registration can provide additional rights and protections, such as the ability to sue for damages in the event of trademark infringement.
A state trademark search involves searching databases for one or more states to find marks that have been registered as business names, trademarks, or trade names. This is important as a pre-existing state trademark registration may prevent you from using your desired trademark in that particular state.
Additionally, a general search can be conducted by looking through business directories, phone directories, and the internet. This can help identify businesses, especially local ones, that may have superior common law rights to yours or whose trademarks may hinder your expansion plans or limit your rights if you decide to register with the USPTO.
It is recommended to conduct a thorough trademark search before using a trademark or applying for federal trademark registration to avoid potential conflicts and infringement on existing trademarks. Common law trademark rights arise from the actual use of the mark in commerce, and they can provide protection for symbols, logos, product names, and other words or marks that identify the source of goods or services.
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Registering your name with the U.S. Patent and Trademark Office
The U.S. Patent and Trademark Office (USPTO) is the agency responsible for granting U.S. patents and registering trademarks. Trademarks, patents, and copyrights are different types of intellectual property. While the USPTO grants patents and registers trademarks, copyrights are registered by the U.S. Copyright Office at the Library of Congress.
A trademark registration can provide nationwide legal protection for your brand in connection with particular goods or services. It is up to you to decide whether to protect your brand under trademark law. Registering your name as a trademark can prevent others from misusing your brand or creating a similar brand that confuses customers.
To register your name with the USPTO, you can apply online. The process involves filing an application, response form, and post-registration. You can also file a petition under Trademark Rules 2.146, 2.147, and 2.148, or request an amendment or correction of your registration. It is recommended to check the current processing wait times and follow tips to avoid delays.
Additionally, you can take advantage of the Madrid Protocol, which allows trademark owners to file one application to register their trademark in multiple countries. Maintenance filings are also required between the fifth and sixth year and between the ninth and tenth year after the registration date.
While copyright registration is not mandatory, it gives you the legal right to sue third parties for infringement. Copyright laws protect original works such as books, digital property, art, music, and other tangible creations. It's important to note that copyright does not protect facts, ideas, or operating methods.
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How to trademark a personal name
Trademarks, patents, domain names, business name registrations, and copyrights are all different types of intellectual property. A trademark typically protects brand names and logos used on goods and services.
Although there is no absolute right to use your own name as a trademark, it is possible to do so under certain circumstances. If your trademark includes the name of another person, you must obtain their written consent. If consent is not provided, or if the trademark falsely suggests a connection with the identified individual, the USPTO may refuse to register your trademark.
To use your name as a trademark, it must be considered distinctive. If the purchasing public's primary impression when encountering the mark is that of a surname, and not a trademark, acquired distinctiveness will have to be proven. Personal names (first names and first names used with last names) can act as trademarks without proof of secondary meaning because they are considered inherently distinctive. Adding two initials to a surname will also likely convey the commercial impression of a personal name, not a surname.
To register a trademark, you must identify whether your trademark format is a standard character mark, a stylized/design mark (also called a "special form" mark), or a sound mark. If you are a U.S. resident, you are not required to hire an attorney to help you through the application process, but it is strongly encouraged that you do so. Throughout the entire process, you are responsible for monitoring the progress of your application and ensuring you meet all deadlines.
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Frequently asked questions
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.
Common law trademark rights are automatic protections that arise from using a trademark in commerce. You can strengthen those rights by registering your trademarks with the U.S. Patent and Trademark Office, or USPTO.
You are responsible for "policing" the trademark, which means keeping track of whether anyone else is using it. Failing to police your common law trademark may lead to losing your rights to infringement protection.
