Keith Mack
Common law trademark rights are protections that arise from using a trademark in commerce. They are appealing because they do not require formal applications or fees. All that is needed to establish ownership rights within a certain geographic area is proof of when the mark was first used in that area. The TM symbol is used to notify others of these trademark rights. However, common law trademarks have regional restrictions and are not as easily enforced as federal trademarks. They also do not come with statutory damages, meaning that trademark owners will need to prove actual economic harm before seeking compensation from an infringing party. Therefore, while TM is not needed for common law protection, it is beneficial for deterring copiers and competitors.
| Characteristics | Values |
|---|---|
| Protection | Common law trademark rights provide basic local protection for your business, but they are regionally restricted and not easily enforced. |
| Registration | Common law trademarks do not require registration, formal applications, or fees. |
| Proof of Ownership | To establish ownership, you need proof of first use of your mark within a specific geographic area. |
| Enforcement | Common law trademark enforcement is up to the trademark owner. Owners are responsible for "policing" the trademark, which means keeping track of whether anyone else is using it. |
| Symbol | 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. |
| Registered Trademark | The registered trademark symbol, ®, is reserved for trademarks that are registered with the USPTO. |
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What You'll Learn
Common law trademark rights are automatic
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. Placing a TM on your trademarks notifies others of your trademark rights and can deter competitors from using your trademarks.
Common law trademark rights are regionally limited and can only be enforced in the geographic area where 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 cannot prevent a competitor from using the same name in San Francisco or elsewhere in northern California.
While common law trademarks provide some basic local protection, they are not as easily enforced as federal trademarks and may not be suitable as a long-term defensive solution. Federal trademarks offer nationwide protection and additional rights, including the right to sue for damages if someone infringes on your trademark. Therefore, it is recommended to strengthen common law trademark rights by obtaining federal registration.
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TM symbol notifies others of trademark rights
A TM symbol (™) placed on a trademark notifies others of a common law trademark right. A common law trademark is a trademark established solely through use in commerce in a specific geographical area. It is not federally registered, and there is no application process or fees associated with attaining a common law mark. Common law trademark rights go to the business that uses the trademark first and can only be enforced in the geographic area where the trademark is used.
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. It serves as a notice to the public that the words or symbols are an unregistered trademark. This can deter copiers and competitors from using your trademarks on their goods or services.
While a common law trademark provides some basic local protection for your business, it has regional restrictions and lacks enforceability, making it inadequate as a long-term defensive solution. 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 advisable.
Federal registration gives a trademark owner substantial additional rights not available under common law. For example, registered trademarks have the right to sue for damages if someone infringes on their trademark, which is not available for common law trademarks. Additionally, federal trademarks have nationwide protection, not limited to a specific geographic area.
In summary, while the TM symbol is not required for common law protection, it is beneficial to use it as it notifies others of your trademark rights and helps deter potential infringers. However, to strengthen your trademark rights and gain more comprehensive protection, it is recommended to pursue federal registration.
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Common law trademark enforcement is up to the owner
A common law trademark is a trademark that is established through usage in commerce in a specific geographic area. It does not require registration with a federal or state government agency and can be obtained by simply using the trademark in association with a business or product. Common law trademark rights are automatic protections that arise from using a trademark in commerce. They can protect a business name, product name, logo, tagline, or other words or marks that identify the source of goods or services.
The TM symbol is used to notify others of a trademark owner's rights and can deter competitors from using similar trademarks. The TM symbol signifies that the owner claims common law or state law trademark rights or has a pending application for federal trademark registration. It is not required by law, but it serves as a notice to the public that the words or symbols are an unregistered trademark.
Enforcement of common law trademarks is the responsibility of the trademark owner. Owners must ""police"" their trademarks by keeping track of whether anyone else is using them. If another business in the same geographic area is using a confusingly similar mark, the owner of the common law trademark must take action to enforce their rights. This can include sending a cease-and-desist letter or seeking legal advice from a trademark lawyer. Failure to enforce common law trademark rights may result in losing those rights.
While common law trademarks provide basic local protection, they have regional restrictions and are not as easily enforceable as federally registered trademarks. Federal registration provides additional protections, including nationwide protection and the right to sue for damages in case of infringement. Therefore, while common law trademarks are a good starting point for small businesses, they may not be sufficient as a long-term defensive solution. Ultimately, the decision to enforce a common law trademark or register it with the USPTO depends on the level of protection and coverage needed by the trademark owner.
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Common law trademark protection is limited
Secondly, common law trademarks are not as easily enforced as federally registered trademarks. The onus is on the trademark owner to "police" their trademark, which means they must actively monitor whether anyone else is using it. Failure to do so may result in losing infringement protection rights. Enforcing a common law trademark can be challenging and is not a viable long-term solution for businesses looking to expand.
Thirdly, common law trademarks do not provide the right to sue for damages in the event of infringement. This is in contrast to federal trademarks, where the ® symbol can be used for deterrence, and legal action can be taken to recover fees in the case of infringement.
Lastly, common law trademarks may complicate the path to trademark registration. Therefore, while common law trademark protection provides some basic local protection, it is limited in scope and enforceability. For more comprehensive protection, registering a trademark with the USPTO is advisable.
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Federal registration provides stronger protection
Federal registration also provides the right to sue for damages if someone infringes on your trademark, which is not available under common law. With a common law trademark, the owner may not be able to sue and collect damages or recover attorney's fees. Instead, the remedies may be limited to injunctive relief, such as a court order for the defendant to cease and desist the infringement.
Another advantage of federal registration is the right to use the registered trademark symbol (®), which denotes a registered trademark with the USPTO. On the other hand, common law trademarks use the TM symbol to notify others of their trademark rights.
Federal registration also provides additional rights and protections that are not available under common law. These include the ability to take legal action against infringers and deter competitors from using similar trademarks. Federal registration strengthens a trademark, making it more tangible and allowing businesses to expand and protect their brand and products on a national scale.
While common law trademarks offer basic local protection, they are not as easily enforced and may not be suitable for long-term brand protection. Therefore, federal registration is recommended to truly strengthen and protect trademarks.
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Frequently asked questions
A common law trademark is a trademark established through the use of a mark in commerce in a specific geographical area. It provides protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services. Common law trademark rights are automatic protections that arise from actually using a trademark in commerce.
TM is not required for common law protection. However, placing TM on trademarks notifies others of your trademark rights and can deter copiers and competitors from using them. The TM symbol signifies that you claim common law or state law trademark rights or have a pending application for federal trademark registration.
Common law trademark owners are responsible for "policing" the trademark, which means keeping track of whether anyone else is using it. Enforcement of common law trademarks 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.
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