Common Law Trademark
Trademark common law rights attach to a trademark once the trademark is associated with any goods/services in a geographical area. The U.S. is a first in time, first in right country. A business that does not register its trademark can still have first priority on the name in the geographic area in which it sells its goods/services as long as it was the first to establish common law trademark rights.
How to Establish Common Law Trademark Rights?
Start a business and begin offering goods or services. Simple as that. Because common law rights attach as soon as you begin using your mark, simply offering for sale goods/services will begin to establish trademark common law rights. These are trademark rights that are enforceable in state courts, and built into your state code. Keep in mind without a registration you damages will likely be limited. In addition, common law trademark rights are based on first use. So if you are trying to sue someone with a similar name make sure you were the first user, otherwise, you will be the one who is possibly infringing, and you are the one who needs to seek a new name.
Are Trademark Common Law Rights Good Enough?
Common law rights provide some protection, however, to truly obtain nationwide protection and a legal presumption of ownership you should seek a federal trademark registration. In today’s technological age your business may find it difficult to assert common law rights over specific geographic areas, especially if your sales are dispersed sporadically across the U.S. The court will consider many factors to determine whether you have acquired common law rights within a specific geographic area including, the public’s association of your mark with the goods/services you sell, whether your mark is distinct of your goods/services, and whether the owner exercises control over the quality of the goods/services. Therefore, if you sell your goods/services to one person in Raleigh, North Carolina it may be difficult to state that the public in Raleigh associates your trademark with your goods/services. Consequently, to be sure you are establishing nationwide protection you should obtain a U.S. trademark registration, rather than relying on your common law use.
If interested in further details regarding common law rights, please see our previous blog post: SausserSpurrLaw Blog Common Law Rights.