Common Law Trademarks
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, it is possible that owner A's use might come before owner B's use in time, but B might have superior rights if B used the mark first within the geographic area or in connection with a particular product line over which the dispute centered.
If I'm the Latecomer, How Would I Defend My Right to Use My Chosen Mark?
A good faith user can defeat a claim of unfair competition by claiming lack of knowledge but this is rarely easy to prove. Usually, a user can maintain credibility and a good faith defense only if he uses the trademark at some distance from the first user, or in a line of products so different from those of the first user that the latecomer would not be expected to be aware of the first use.
Two Factors to Consider in Determining Common Law Rights
- Priority - The first user normally has priority, but priority is measured and awarded only with respect to the market in which the first user conducts business.
- Market - If the first user limited his business area, a second user can market under the same or similar mark in a completely different area. There the second user becomes first user in that area.
Should I Consult a Lawyer about My Trademark Issue?
The deadlines and regulations for trademark registration are detailed and strict. An attorney can help you meet all the deadlines and fulfill all the requirements. A lawyer can also participate in on-going research to make certain no one else is using or diluting your trademark without your permission. Additionally, if you have an issue regarding your common law trademark rights, an attorney can guide you through the difficult task of determining what rights, if any, you might have, as well as how to protect those rights you might be entitled to. Although registration is recommended, it is not required because you may still gain common law rights to your mark.
Consult a Lawyer - Present Your Case Now!
Last Modified: 12-11-2013 02:24 PM PST
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