What Are Common Law Trademark Rights?

When most people think of trademarks, they think of official registration with the U.S. Patent and Trademark Office (USPTO). However, common law trademark rights are an important and often overlooked aspect of trademark protection. These rights are automatically granted to anyone who uses a trademark in commerce, even without registering it. However, there are limitations to common law rights, so just because you used your brand in commerce does not mean you have complete and exclusive rights to it. Here is what you should understand about common law trademark rights:

1. What Are Common Law Trademark Rights?

Common law trademark rights are unregistered trademark rights that are automatically granted when a business uses a mark in commerce. These rights are based on actual use of the trademark and the association of the mark with the goods or services it represents, even if it hasn't been formally registered with the USPTO.

2. How Do Common Law Rights Work?

If you are the first to use a mark in commerce within a particular geographic area, you gain exclusive rights to that mark in that region, so long as another business does not have a pending or registered mark with the USPTO. These rights allow you to prevent others from using a confusingly similar mark in connection with the same or related goods or services even if you have not filed for official protection of the trademark.

3. Limitations of Common Law Rights

While common law rights provide some level of protection, they are more limited than those obtained through federal registration. They only apply to the geographic area where the trademark is actually used, which means your rights could be restricted to a local or regional market. Additionally, proving your common law rights can be more difficult in case of a dispute, as there is no formal record of your trademark's use. The geographical restriction of common law rights can prevent you from expanding your brand’s protection as your business grows. For example, if you start using your trademark in California and someone else starts using the same mark in New York, then you would both be prevented from expanding your business into the other state as the other already has common law rights in that geographic area.

4. How to Strengthen Common Law Rights

Although common law rights don’t require registration, it’s still a good idea to keep detailed records of your first use, such as advertising materials, sales data, and customer interactions. These can help establish your rights if another party tries to challenge your use of the mark.

5. When Should You Register Your Trademark?

While common law rights can be valuable, registering your trademark with the USPTO provides broader protection and legal benefits, such as the ability to sue in federal court and nationwide protection. Federal registration also helps prevent others from registering a similar mark. Keep in mind that you don’t have to be using a mark in commerce to obtain protection. If you file an intent-to-use application with the USPTO, your claim to the mark will take priority over anyone else's common law rights if they began using the mark after you filed your application.

Common law trademark rights offer protection based on the actual use of a mark in commerce, even without official registration. While these rights can help you protect your brand in a specific geographic area, registering your trademark with the USPTO provides more comprehensive legal safeguards. Whether you’re operating locally or planning to expand nationally, understanding common law rights is essential to maintaining control over your brand.

If you have any questions about trademark registration, do not hesitate to reach out to us. Go to https://long.law/intake to book a free consultation.