A common law trademark refers to trademark rights acquired simply through the use of a name, logo, or other identifier in commerce, without the need for formal registration. These rights provide limited protection within the geographic area where the trademark is used. Understanding how common law trademarks work can help you safeguard your brand while considering whether to pursue formal registration.
It’s important to note that copyright and trademark law are distinct. While you cannot copyright a name (as copyrights protect creative works like books or music), you can establish trademark rights for a name under common law by following these steps:
Common law trademarks are created through actual and consistent use of the name in connection with your business. This could include using the name on products, marketing materials, or signage.
Ensure your name becomes associated with your goods or services in the minds of customers. Building a strong reputation in your area strengthens your claim.
Keep detailed records of when and where you’ve used the name, such as receipts, advertisements, and website screenshots.
Be vigilant about unauthorized use of your name. As the owner of a common law trademark, the burden is on you to enforce your rights.
The problem is that enforcing a common law trademark is difficult, burdensome, and expensive because you must prove that someone in your geographic knew of your name and intentionally used it to copy your brand or steal your goodwill. This is incredibly difficult to prove in court, and most attorneys will shy away from a case of this nature. For broader protection beyond your region, consider consulting a trademark attorney to explore federal registration which provides nationwide protection and an easier way to enforce your trademark rights.
Common law trademark rights can last indefinitely, provided you continuously use the name in commerce. However, these rights are vulnerable to challenges if:
Trademark rights are tied to active use. If you discontinue use, you risk losing your common law protection.
Federal registration typically supersedes common law rights unless you can prove prior use.
Allowing others to use your name without objection can weaken your claim over time.
While common law trademarks offer basic protection, they have significant limitations, such as geographic restrictions and the burden of proof in disputes. Registering your trademark federally with the U.S. Patent and Trademark Office provides nationwide protection, greater legal standing, and a public record of ownership. A trademark lawyer can guide you through the registration process, ensuring your brand is fully protected and equipped to grow.
Understanding common law trademarks is an important first step in safeguarding your business identity. For comprehensive protection and expert legal advice, contact The Social Media Law Firm to discuss your branding strategy with an experienced trademark attorney. Contact us today for a free consultation.
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