What Is a Common Law Trademark Protection

A common law trademark is a trademark that has been established solely through usage in commerce in a particular geographical area. Therefore, they are not required to be registered with the government to cover trademark protection. For example, suppose you own a business with a unique name that helps identify your products or services. In that case, your business name is protected under common law trademark protection even before it is registered with the state or federal government.

Common law trademark protection is beneficial for a small business owner because it can stop local competitors from using your brand. However, since some of your economic benefits depend on this mark, you must go through the registration process and prevent anyone else from using it.

How to Establish Your Common Law Trademark?

Have you been using the mark for commercial purposes anywhere? If yes, you already have common law trademark rights protecting your mark in that geographic area. The first person to use the trademark in commerce owns the common law trademark rights to the mark in that area.

To declare your ownership of a common law trademark, all you have to do is add the letters’ TM’ in superscript after the name or symbol. The common law rights stand as long as you continue to use the mark, and it protects your mark from infringement in that particular geographic area to prevent the likelihood of confusion among consumers.

How to Conduct a Common Law Trademark Search?

Things can get out of hand if you suddenly find out that the name you spent several days trying to figure out is already in use. Therefore, before you begin the process of establishing your common law trademark, it is highly recommended to do an extensive search of exact and similar marks to avoid infringement.

Unfortunately, a common law trademark search can be time-consuming because there is no central database of common law trademarks, unlike marks registered with the state or federal government. Therefore, the best way to conduct a common law trademark search would be to cover multiple sources that include the internet, public records, newspapers, and the USPTO trademark database.

While the activity can be nerve-wracking, you will be protecting yourself from wasting time, money, and effort that you took to establish your mark when you find out later that someone else has been using it before you.

Difference between a Common Law Trademark and a Registered Trademark?

With a USPTO trademark registration, you may benefit from several advantages, including ensuring your intellectual property throughout the country, which means you don’t have to worry about its limitation to your geographical vicinity. Other than that, you get the right to use an R symbol to denote a registered trademark. Finally, and most importantly, the USPTO lists your trademark in its trademark database that can be taken as a point of reference for you and others so that they cannot infringe on your mark.

The distinction between registered trademarks and common law trademarks is that you can sue for damages if someone infringes on your trademark if you have it registered. In addition, it helps to ensure that you are compensated in some way for the harm caused by the infringing party.

Summary

Trademarks are a great way to gain your competitive advantage in the marketplace. However, similar marks, logos, and names can confuse consumers who may purchase a product or hire a business thinking that they are buying one product from you while getting another’s. 

When it comes to common law trademarks, the process of establishing them is much simpler as you only have to show that you’ve been using the mark for commercial purposes. As long as you are using the mark and there is no likelihood of confusion among consumers, your common law trademark rights will protect you from any infringement by competitors in that particular geographic vicinity. Whereas, a registered trademark comes with more advantages, including nationwide protection for your mark and legal remedies for trademark infringement.

For those new to the trademark process, we provide a complete package for securing your trademark so that you don’t have to worry about its protection. From our easy, step-by-step process to our professional customer service, we have everything you need for an effective and efficient trademark filing.