Keith Mack
Common law trademarks provide protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services. In the United States, common law rights automatically protect your original creations when you make them public, even without officially registering your trademark. However, registering a trademark with the United States Patent and Trademark Office (USPTO) provides additional protections and rights, such as nationwide protection and the right to sue for damages. To declare ownership of a common law trademark, you should add a superscript TM to it and ensure that no one else is already using the mark. While it is not a substitute for registration, some people practice sending a copy of their work to themselves, which is sometimes called a poor man's copyright.
| Characteristics | Values |
|---|---|
| Common law trademark protection | 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 | Begin when you start using the mark in commerce in a particular geographical area |
| Declaration of ownership | Add a superscript "TM" to your trademark |
| Due diligence | Make sure that no one else is already using the mark to avoid infringing on someone else's common law trademark |
| Common law trademark search | Extensive and time-consuming, covering various sources including the internet, public records, newspapers, and the USPTO trademark database |
| Policing the trademark | Keep track of whether anyone else is using it; failure to do so may lead to losing your rights to infringement protection |
| Copyright registration | Recommended to further secure your works and avoid costly legal issues in the future; necessary if you wish to bring a lawsuit for infringement of a U.S. work |
| Copyright notice | Includes the symbol ©, the word "Copyright", the year of first publication, and the name of the copyright owner or entity holding the rights |
| Federal copyright registration | Provides additional protections and rights, including nationwide protection, the right to use the registered trademark symbol, and the right to sue for damages |
| Common law copyright | Available for certain categories of works, such as pre-1972 sound recordings, which do not receive federal copyrights |
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What You'll Learn
- Common law trademark search: Check various sources like the internet, public records, newspapers, and the USPTO database
- Due diligence: Ensure no one else is using the name to avoid infringing on their rights and incurring rebranding costs
- Common law trademark protection: The TM symbol indicates common law rights, which begin when the mark is used in commerce in a specific area
- Common law trademark ownership: Declare ownership by adding a superscript TM to your name
- Copyright registration: While not mandatory, registering your work can help in infringement lawsuits and provide statutory damages and attorney's fees
Common law trademark search: Check various sources like the internet, public records, newspapers, and the USPTO database
In the United States, common law rights automatically protect your original creations when you make them public, even without officially registering your trademark with the US Copyright Office. However, registering your work can help you avoid costly legal issues in the future and allow you to claim statutory damages in infringement cases.
To register a trademark, you can search the United States Patent and Trademark Office's (USPTO) federal trademark database. This database contains millions of trademarks, so an effective search strategy is required. Here are some steps to guide you through the process:
Internet Search
Unlike simple internet searches, federal trademark searches involve searching multiple times using different combinations of terms. Review all the results from each query and ask yourself the following questions:
- Is the trademark confusingly similar to yours? Trademarks may be confusingly similar if they look or sound alike, have similar meanings, or create similar commercial impressions.
- Are the goods or services related to yours? Could a consumer mistakenly believe the goods or services come from the same source? Goods or services may be related if they are used or sold together, used by the same purchasers, advertised together, or sold by the same manufacturer or dealer.
Public Records
To further ensure the uniqueness of your trademark, you can also search public records beyond the USPTO database.
Newspapers
Checking local and national newspapers for trademark usage can be another step in your search process.
USPTO Database
The USPTO trademark database contains millions of trademarks. When searching the database, focus mainly on live trademarks, as only live trademark applications and registrations can prevent your trademark from being registered. However, don't completely disregard trademarks on dead applications, as they can still present legal problems if they are being used in commerce.
While searching the USPTO database is essential, it's important to note that there is no guarantee your trademark will be registered, even if it doesn't conflict with any live trademarks in the database. There are many other legal requirements for registering a trademark, and your application must satisfy all of them.
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Due diligence: Ensure no one else is using the name to avoid infringing on their rights and incurring rebranding costs
Due diligence is a critical step in the process of creating a common-law copyright name to ensure you are not infringing on someone else's trademark rights. 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, even before it is formally registered with the state or federal government.
Conducting thorough due diligence will help you avoid the costly and time-consuming process of rebranding if it is discovered that someone else already has trademark rights to the name you want to use. This process can be challenging because, unlike registered trademarks, there is no central database for common law trademarks. Instead, you must conduct a comprehensive search across various sources, including the internet, public records, newspapers, and registered trademarks in the USPTO trademark database.
It is recommended to engage the services of an intellectual property attorney, as they have specialized knowledge and can guide you through the process of conducting an effective IP due diligence investigation. They can help identify potential issues and ensure that the name you want to use does not infringe on any existing trademarks.
In addition to legal guidance, there are some practical steps you can take to ensure your due diligence process is thorough. These include:
- Creating a comprehensive checklist to ensure no important information is missed during your investigation.
- Considering the nature of your business and the specific context in which the name will be used to guide your search.
- Being diligent and patient during your investigation, as it may be time-consuming due to the lack of a centralized database for common law trademarks.
By conducting thorough due diligence, you can be confident that your chosen name is unique and does not infringe on anyone else's trademark rights, thus avoiding potential legal issues and rebranding costs in the future.
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Common law trademark protection: The TM symbol indicates common law rights, which begin when the mark is used in commerce in a specific area
Common law trademark protection is indicated by the TM symbol. This symbol is used for unregistered trademarks, which can apply to goods or services. The TM symbol is placed next to a trademark to signal that a business is claiming ownership of that mark, even if it is not formally registered. This is particularly useful when a business is starting up and wants to establish rights to a name, phrase, or logo.
The TM symbol is a way to inform competitors that you are the rightful owner of a particular word, image, or design, and that they should not copy it. It is a trademark's first line of defence, serving as a warning to competitors and giving customers confidence that they are choosing authentic goods or services.
Common law trademark rights are established through the first use of the mark in commerce. These rights are limited to the geographic areas in which the goods or services are provided. For example, if a business uses a logo as a trademark for handmade jewellery sold at a local farmer's market, the TM symbol would indicate that they own the trademark for that logo in that specific area. As the business grows and expands online, they may want stronger protection for their trademark and can apply for federal registration, which provides nationwide rights.
It is important to note that the right to use a common law trademark assumes that no one else already owns a similar registered trademark. If someone has a registered trademark that is similar to an unregistered one, the unregistered trademark may not qualify for federal or common law protection.
In addition to the TM symbol, there is also the SM symbol, which is used for service marks. This applies to businesses offering services rather than goods. Both the TM and SM symbols are considered unregistered trademark symbols and offer the same level of legal protection. Registering a trademark provides broader rights and protections, and allows for the use of the registered trademark symbol (®).
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Common law trademark ownership: Declare ownership by adding a superscript TM to your name
In the United States, common law trademark rights are automatic protections that arise from using a trademark in commerce. These rights are not governed by statute but are instead developed through use under a judicially created scheme of rights governed by state law. Common law trademark rights can apply to a symbol, logo, product name, or other words or marks that identify the source of goods or services.
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 certain name only in California, the trademark rights to that name exist only in California.
To establish a common law trademark, you must conduct a trademark search to ensure that no other businesses are using a confusingly similar mark. This process can be time-consuming, as there is no central database of common law trademarks. The search must cover various sources, including the internet, public records, newspapers, and registered trademarks in the USPTO trademark database.
Once you have established a common law trademark, you can declare ownership by adding a superscript TM to your name. The TM symbol signifies that you claim common law or state law trademark rights or that you have a pending application for federal trademark registration. This serves as a notification to others of your trademark rights and can deter copiers and competitors from using your trademarks.
While common law trademark rights provide some protection, registering your trademark with the USPTO offers additional benefits, including nationwide protection and the right to sue for damages in the event of infringement. Federal registration is not required to establish common law rights, but it is generally recommended to gain substantial additional rights.
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Copyright registration: While not mandatory, registering your work can help in infringement lawsuits and provide statutory damages and attorney's fees
Although copyright protection is automatic from the moment a work is created, registering your work can provide several benefits in the event of an infringement lawsuit. Firstly, registration strengthens your legal position by establishing a public record of your copyright claim. This serves as evidence of your ownership and puts others on notice that your work is protected.
Secondly, registering your work enables you to claim statutory damages and attorney's fees in successful litigation. Statutory damages are particularly helpful as copyright owners often face challenges in calculating and proving the exact extent of harm caused by infringement. By registering, you may be eligible for a predetermined amount of damages without having to prove actual damages, which can be complex and result in nominal court-awarded amounts.
Additionally, timely registration can be crucial. Registering your work before or within a specified timeframe, typically within three months or one month after learning of the infringement, ensures you don't miss out on these benefits. This grace period is provided to accommodate newsworthy or suddenly popular works that may be infringed upon quickly after publication, before the owner has had a reasonable opportunity to register.
While registration is not mandatory, it is a recommended step to secure your works and avoid potential legal issues down the line. It is worth noting that failure to register within the specified timeframe may hinder your ability to claim statutory damages and attorney's fees, emphasizing the importance of timely registration to fully protect your intellectual property rights.
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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.
To declare ownership of a common law trademark, add a superscript "TM" to your name. You maintain common law infringement protection as long as you continue to use the name.
Common law copyright may be available for some categories of works, such as pre-1972 sound recordings, that do not receive federal copyright protection. Federal copyright, on the other hand, provides nationwide legal protection and the right to sue for damages in case of infringement.
It is your responsibility to "police" your trademark, which means keeping track of whether anyone else is using it. Failing to do so may lead to losing your rights to infringement protection.
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