Common Law Trademark Rights

Authored by , LegalMatch Law Library Managing Editor and Attorney at Law

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Most Common Intellectual Property Law Issues:

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.  However, these rights are only good in the geographic area where you sell the goods.   

What Happens if Someone Else is Using the Same Trademark But Not in My 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 your trademark is being used by someone else, that person might be able to stop you from using the trademark in that region (even if you came up with the trademark first). 

I Just Found Out I Have Been Using Someone Else's Common Law Trademark.  Can I Keep Using It?

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 about My Trademark Issue?

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: 04-05-2012 11:16 AM PDT

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