Common Law Trademark Rights

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What Are Common Law Trademark Rights?

Common law trademark rights are trademark rights gained through common use rather without federal registration. Common law trademark rights are not governed by the federal statute, but rather through state law.

Is There a Way to Obtain Trademark Rights without Registration?

If you use your trademark in connection with goods you sell, you can gain legal protection of your trademark through the common law instead of registration.

These rights are only upheld in the geographic area where you sell the goods. Federal registration of the trademark rights is always recommended since it will result in additional rights that are not covered by common law.

Can the Same Trademark Be Used in a Different Area?

At common law, your trademark rights only cover the geographic region you are selling your goods in. So someone else in another region can typically use the same trademark as long as they do not market in your territory. If you choose to expand into another region where someone else is using your trademark, that person might be able to stop you from using the trademark in that region (even if you came up with the trademark first).

Common law trademark rights are also limited to geographical areas where the trademark is being used. For example, if the special brand of soap sold under the name “Bubbles” is sold only in California only, then the trademark right to the name “Bubbles” exists only in California and no other geographical area. So, if another person sold soap under the name “Bubbles” in the state of Nevada without the knowledge that there is an existing trademark name in California, there would be no trademark infringement.

However, if the person in Nevada wanted to sell the Bubbles brand nationwide through all the states including the state of California, it would be discovered that California already has a existing brand named under the Bubbles trademark and that person would be unable to sell their product in the California market.

What If I Just Discovered I Have Been Using Someone Else's Common Law Trademark?

You can keep using the trademark if you can show that you had no knowledge whatsoever of the existing trademark. A court is more likely to let you keep using the trademark if your use is in a different region or for a different type of product.

Should I Consult a Lawyer?

The laws that govern common law trademarks are very complex and often confusing. An experienced trademark attorney can help you protect your trademark. A trademark lawyer can also participate in on-going research to make certain no one else is using or diluting your trademark without your permission. Although registration is recommended, it is not required because you may still gain common law rights to your mark.

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Last Modified: 09-17-2014 04:25 PM PDT

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