Common Law Trademark Rights

Common Law Trademark Rights

What are your common law trademark rights?

If you are thinking about starting a business, it’s crucial that you protect yourself and your product. Equally as important, you need to make sure you aren’t violating anyone else’s trademark rights.

If you have a product or service and you want to start a business, you’ll want to differentiate yourself from similar businesses. One of the main ways you can do that it by using a unique logo, design, phrase, image, etc. so that people recognize you and seek out your service or product.

What is a Trademark?

Common Law Trademark Rights

The intended purpose of a trademark is to differentiate your product or services from similar ones on the market.

A great example of the importance of trademarks is UPS and FedEx: they supply similar services but they set themselves apart through branding. Both UPS and FedEx have registered marks for their logos, and those marks come with certain rights and protections.

Common law trademark rights are going to be a little different from registered marks, but you will still have some protections.

Unregistered Mark

Before you register a trademark, you should use the ™ symbol for goods or the ℠ symbol for services. Even before you register a trademark, you begin to develop rights in the use of that mark under the common law. This is why it is called common law trademark rights.

Anyone can begin use of a trademark, which is sometimes referred to as a common law trademark before you register it. Even if you haven’t officially registered your logo, design, phrase, image, etc. with the United States Patent and Trademark Office, you can use this mark to protect yourself from infringement.

You should also note others’ use of any trademarks to avoid infringing on their trademark rights.

Registered Mark

Registered trademarks use the ® symbol.

You only have a registered trademark if you apply with the United States Patent and Trademark Office. These marks are federally regulated so make sure you aren’t misusing them. There are benefits to registering your mark because it gives you more legal rights than common law trademark rights.

Registering and maintaining trademarks can be complicated. But if you plan to start a business, you should still consider registering your trademark instead of relying on common law trademark rights.

Always make sure you use the right symbol for the type of trademark you have.

How to Register a Mark

Common Law Trademark Rights

If you decide that registering your trademark is necessary to protect your goods or services, you will need to apply with the United States Patent and Trademark Office. Nowadays, that process takes place online.

When you get online and go to the USPTO’s website, do some research on what type of mark you should register for, what you need to do to maintain your trademark, and other important information.

You should also do research to make sure that what you are trying to register doesn’t infringe on someone else’s trademark rights.

Why Should You Register a Trademark?

Common Law Trademark Rights

There are a lot of benefits associated with registering your trademark. Mainly, if someone infringes on your rights, you can collect money damages in federal court.

Another reason to register is if you plan to expand your business beyond your local area. Especially if you plan to conduct business online, your common law trademark rights might not extend past your locality.

While you are in the process of applying for a registered trademark, continue to use the common law trademark until the application is approved.

What are Your Common Law Trademark Rights?

Common Law Trademark Rights

Now that you know a little more about what a trademark entails, consider what your common law trademark rights actually are.

If you are using a common law or unregistered trademark, you have rights and protections within your state. If you are conducting business with a common law, or unregistered, trademark, you will have protections in court solely within your geographic area of business.

Benefits

There are some benefits to using a common law trademark. If you haven’t settled on the exact logo, design, or image you want to use for your business, an unregistered mark allows you to maintain flexibility.

Also, your common law mark might come in handy if someone tries to register your mark. Sometimes common law trademarks that predate registered marks have something called trademark priority. You should do research to make sure this applies to your product or service.

Another benefit is that you don’t have to register for a common law trademark with the USPTO. You don’t have to go through the steps of maintaining the registration, such as proving you are using it in commerce.

Disadvantages

If you plan to conduct business outside of your local geographic area, a common law trademark usually isn’t enough to protect you. You also miss out on the advantages of having a registered mark provided by the USPTO.

Some of the advantages provided by the USPTO include the ability to bring action against an infringer in federal court. You can also take advantage of protections against the importation of goods that will infringe on your rights.

Abandoned and Dead Trademarks

Common Law Trademark Rights

When the USPTO no longer recognizes a trademark, it’s dead or abandoned. If you worry about your trademark becoming abandoned, there are steps you can take to protect it.

First and foremost, make sure you comply with the requirements of the USPTO.

Before you try to register a mark someone abandoned, make sure you aren’t violating the previous holder’s common law rights. Even if the USTPO no longer recognizes a previously registered trademark, it retains common law protections. Always do thorough research before registering any trademark, including those that are considered dead.

Conclusion

Common Law Trademark Rights

Now that you understand more about common law trademark rights, apply this knowledge to your business. There are definitely instances where common law protections are enough, but continuously assess how your business is growing and changing.

If you’re not sure where your business is going, you should still take advantage of your common law rights while you figure it out. Also remember to consider the common law rights of other trademark holders. Always do thorough research to avoid infringing on anyone else’s trademark rights.

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    JACOB TINGEN

    LAWYER & ONLINE ENTREPRENEUR

    After graduating from law school and passing the bar, I struggled to find work, pay my bills, and make ends meet. That's when I decided to take control of my future and start working for myself. Now, three years and several companies later, I'm sharing how I launched a successful business, and how you can do it too.

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