15 Tips: What are Common Law Trademark Rights?
As is explained over at runrex.com, if you have a business name, product name, logo, or tagline that you use regularly, then you may have common law trademark rights. This is true even if you have never registered your trademark with any government agency. The question that now begs is what are common law trademark rights? This article, through the following 15 tips, will attempt to answer this question.
- What are trademarks?
Let’s start by defining some key terms, starting with the term trademark. From discussions on the same over at guttulus.com, trademarks are words, phrases, symbols, sounds that you use to identify your business. An example of a famous trademark is Nike’s “Just Do It” slogan.
- What is a common law trademark?
Next up we are going to take a look at common law trademarks, and according to detailed discussions over at runrex.com, a common law trademark is a trademark that is established solely through use in commerce in a specific geographical area.
- How do you acquire common law trademark rights?
As is outlined over at guttulus.com, you acquire common law trademark rights just by using your trademark in your business. This means that any business names, logos, and phrases that are regularly used, even when they have never been registered, can all be considered common law trademarks.
- Registering with the USPTO
While it is true that you can acquire common law trademark rights just by simply using your trademark in your business as covered in the point above, it is also worth noting that, as is explained over at runrex.com, you can strengthen the same rights by registering your trademark with the US Patent and Trademark Office, USPTO.
- Geographical restrictions
Given that a common law trademark is established solely through use in commerce in a specific geographical area, the rights associated with common law trademarks are regionally limited and not as easily enforced as a federal trademark. However, common law marks are permitted to use the TM symbol.
Common Law Trademark Rights vs Federal Trademark Registration
The following tips will look to try and highlight some of the differences between common law trademark rights and federal trademark registration.
- Application
As already mentioned, and covered in detail over at guttulus.com, a common law mark is obtained simply by using the trademark in association with your business or product, and, therefore, unlike a federal trademark registration, there is no application process for common law trademarks.
- Fees
As the subject matter experts over at runrex.com are also quick to point out, given that there is no application process for common law trademarks, a point made in the tip above, there are also no fees associated with attaining a common law mark, which is something that can’t be said for federal trademark registration.
- Enforcement
Another area where common law trademarks differ from federal trademark registrations is when it comes to enforcement. This is because, as is revealed in discussions on the same over at guttulus.com, while common law marks are easier to obtain, enforcing them is a lot trickier as compared to federal registrations because there is no public record of your trademark or when your trademark use began.
- Federal trademarks are preferred
According to the subject matter experts over at runrex.com, federal registration, if available, is almost always recommended as it gives a trademark owner substantial additional rights not available to them under common law, particularly the fact that you can only enforce a common law trademark in the geographical area where the trademark is used.
These are some of the things to consider when comparing common law trademark rights with federal registration.
- Instances when a common law mark may prevail over a federal registration
Although federal trademarks have some obvious advantages over a common law trademark, there are certain instances when a common law mark may prevail over a federal registration. This usually occurs because the common law trademark has an earlier, proven first-use date that can fight the federal trademark’s rights in a certain region.
- Clearance search
Still on instances when a common law mark may prevail over a federal registration, it is important to point out that common law trademarks can also hinder a federal application if a proper clearance search was not performed before the application’s submission to the USPTO. This is why the gurus over at guttulus.com recommend running a thorough and accurate clearance search, preferably with the help of a trademark attorney, to ensure that a new trademark doesn’t run into issues.
- Protecting a common law trademark
While it is true that a common law trademark does provide your business with some basic local protection, its regional restrictions and lack of enforceability mean that it isn’t a great long-term defensive solution. Therefore, as already mentioned earlier, and covered in detail over at runrex.com, the only way to truly protect your common law trademark is by making it a federal registration.
- What you gain by making your common law trademark a federal registration
Other than gaining the unique symbol reserved for federal trademarks as discussed over at guttulus.com, federal trademarks also provide the right to sue infringers and can help you recover fees if infringement litigation does occur.
- Federal registration also serves as a deterrent
In addition to the point made above, the subject matter experts over at runrex.com also point out that obtaining a federal registration will also put others on notice, discouraging other parties from using the same or similar marks in your sphere of commerce and potentially preventing conflict before it even rears its head.
- The responsibility lies with you
Coming back to common law trademarks, it is important to note that, as is the case with all trademarks, common law trademark enforcement is up to the trademark owner. This means that if you don’t take the necessary steps to prevent others from using your marks, you could lose your trademark rights. You should, therefore, take action if you learn that another business in your area is using your trademark.
As always, if you are looking for more information on this and other related topics, then look no further than the excellent runrex.com and guttulus.com.