Trademark Common Law Rights

Trademark Common Law Rights

Trademarks are vital assets for businesses, protecting their brand identities and distinguishing their products or services from competitors. While trademark registration with the United States Patent and Trademark Office (USPTO) offers significant advantages, businesses can also acquire trademark rights through common law. A lawyer helping clients with intellectual property can help you protect your legal rights as a common law trademark owner.

Photo of a Lawyer with a ClientTrademark Common Law Rights in Washington DC

Trademark common law rights offer an invaluable route to protect a business’s brand identity and reputation without the complexities of a formal federally registered trademark. Common law trademark protection is immediate and cost-effective, making it a viable option for businesses of all sizes.

Trademark common law rights are unregistered trademark rights that stem from using a particular mark in daily operations. They serve as a foundation for establishing and protecting the business name, identity, reputation, and market presence.

Unlike registered trademarks, common law rights arise solely from the actual use of the mark in operations and commerce. Unregistered trademarks are granted protection under trademark law to be used within a particular geographical area. You can attain an edge over the local competitors by becoming the first user of an unregistered mark.

Are Trademarks Protected by Common Law?

Trademark Common Law Rights arise from using a distinctive mark in operations to identify goods or services. Unlike registered trademarks, which require formal registration with the United States Patent and Trademark Office (USPTO), common law rights come into effect automatically through continuous and consistent use of the mark.

You may need to make a trademark search in the USPTO database to ensure there is no other registered trademark symbol. A licensed attorney can help you go through the public records for finding any federally registered trademarks that are confusingly similar.

These rights may not afford foreign countries or national protection in the same way as a registered goods and service trademark. However, they offer some level of protection within the geographic region where the mark is used. Under the law, you can stop local competitors from using similar sounding words and symbols to confuse consumers into purchasing their products and services.

Although common law protection offers immediate benefits, it is limited to the specific area of use and may require providing evidence of use when enforcing infringement protection rights.

Can You Sue for Common Law Trademark Infringement?

Trademark Common Law rights allow businesses to enforce their exclusive mark usage in business operations without being federally registered. To pursue a lawsuit, you must prove priority of use, showing that you were the first to use the mark in a specific geographic area. In addition, you will also need to demonstrate that the infringing mark’s use by a competitor is likely to cause consumer confusion or falsely associate with your brand.

Under the common law trademark, you don’t necessarily need to register your trademark. You don’t need to file a trademark application or invest in trademark searches with USPTO. With the help of a competent attorney, you can file a trademark use infringement lawsuit with state court or federal court.

Commercial use of the infringing mark in offering similar goods or services is necessary to establish the case. While federal registration offers additional advantages, common law trademark infringement lawsuits can safeguard your rights and brand integrity. Consulting a competent trademark or copyright lawyer can help you determine the best course of action to protect your intellectual property.

Photo of Lady JusticeHow Do You Assert Common Law Trademark Rights?

Asserting common law trademark rights involves taking proactive steps to protect your unregistered trademark from unauthorized use or infringement. Here’s a comprehensive guide on how to assert common law trademark rights:

  • Usage and Documentation: To establish common law rights, consistently use the mark in everyday operations to identify your goods or services. Maintain detailed records and documentation of your mark’s usage, including sales receipts, invoices, advertisements, packaging, and any evidence of the mark’s association with your business.
  • Monitoring: Vigilantly monitor the marketplace for potential infringing uses of your mark. Regularly conduct searches on the internet, social media platforms, and industry-specific publications to identify any similar marks or brands that may cause confusion with your trademark.
  • Cease and Desist Letters: If you discover someone using a similar trademark that could lead to confusion with your mark, consider sending a cease-and-desist letter. The letter should assert your common law rights, demand that the infringing party stops using the mark, and provide a reasonable deadline for compliance. Include evidence of your mark’s use and recognition to strengthen your position.
  • Publicity and Branding: Promote your mark and build strong brand recognition through advertising, marketing campaigns, and public relations efforts. Establishing a strong presence in the marketplace can deter potential infringers and solidify your common law rights.
  • Educate Your Team: Ensure that your employees and partners are aware of your trademark rights and the importance of protecting the mark from unauthorized use. Implement internal guidelines to maintain consistent and proper usage of the trademark.
  • Use “™” Symbol: Even though you have not registered your trademark, using the ™ symbol with your mark notifies others that you are claiming common law rights to the trademark and can act as a deterrent against potential infringers.
  • Consult an Attorney: When necessary, seek legal advice from a trademark and patent law attorney. They can help you understand your rights, evaluate potential infringement cases, and guide you through the process of enforcing your common law trademark rights.

By asserting your common law trademark rights proactively, you can protect your brand, preserve its distinctiveness, and prevent others from using similar marks that may cause confusion in the marketplace. Remember that while common law rights offer some level of protection, federal trademark registration provides additional benefits and is often recommended for businesses looking to strengthen their trademark protection nationwide.

What are the Limitations of Common Law Trademarks?

Common law trademarks offer valuable protection for businesses, but they also come with certain limitations. Here are some of the key limitations of common law trademarks:

  • Limited Geographical Scope: Protection is restricted to the region where the mark is used.
  • Enforcement Challenges: Proving rights and incontestable status may be harder without federal registration.
  • No Presumption of Validity: There’s no automatic legal presumption of ownership.
  • Limited Statutory Damages: Owners may not be eligible for statutory damages.
  • Difficulty in Interstate Commerce: Enforcing rights across states can be complex.
  • Less Deterrent Effect: Infringers may not be aware of unregistered rights.
  • Limited Rights Against Third Parties: Protection only extends to the same geographic area.

To strengthen protection, federal trademark registration offers broader benefits. Weigh the options based on your business needs. You may want to consult with a proven and capable internet law attorney for any possible digital infringements.

Team Up with Our Experienced Trademark Lawyers to Take the Next Step in Safeguarding Your Brand

The knowledgeable and experienced trademark attorneys at Greenberg & Lieberman, LLC are ready to protect your hard-earned trademark and create a solid foundation for your brand’s success. Our dedicated intellectual property attorneys will assist you and provide you strong representation, no matter how complex your IP issues may be .

Whether you are considering common law rights or federal trademark registration, we’ll tailor our guidance to your unique business needs. Contact us at (888) 275-2757 or use our online form to schedule a free, no-obligation consultation with our legal team today.

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