Common Law Trademark

Lia Kopin-Green
August 16, 2022

What is a Common Law Trademark?

A common law trademark is a mark that is protected before it has been registered with the government. Essentially, common law trademarks protect product names, logos, and symbols that help uniquely identify a product, service or brand without requiring registration with the United States Patent and Trademark Office (USPTO). Common law trademarks provide business owners protection from intellectual property infringement and help the consumer distinguish the source of a product or service by using the ™ symbol.

Common law trademark rights are acquired by using the mark in commerce in a particular geographical region. In that area, the first person to use that mark claims common law rights, regardless of whether they had registered it.

Key Takeaways

  • A common law trademark is a mark that is established by using it in commerce in a specific geographical area.
  • USPTO registration is not required for common law trademarks and therefore no fee is required.
  • Common law trademarks are recognized by the ™ symbol.

Understanding Common Law Trademarks

Unlike federally registered trademarks, common law trademarks are geographically limited. Simply put, common law trademark rights are valid only in the area in which the mark is used. For example, imagine someone opening a wedding planning business in New York under the name “I Do.”​ The owner of the business claims rights to “I Do” just in New York. Therefore, it would not be considered trademark infringement if another wedding planning company opened up shop in Florida under the same name. It should be noted, however, that if the Florida company expands to New York, it will not be able to use the name "I Do" since the original company was the first to use it there.

Common Law Trademark Searches

The first step in using a trademark is to conduct several searches that will ensure the mark is not already being used by someone else. In addition to preventing unnecessary infringement lawsuits, this will also stop potential consumers from confusing the trademark with other businesses.

The USPTO has an easily accessible and extensive list of federal trademarks, but common law trademark searches are a bit more complicated. There is no central database of common law trademarks since they do not require registration. Therefore, in addition to checking the USPTO trademark database, common law trademark searches are typically conducted by sifting through the Internet, newspapers, magazines, and public records. You may also consider hiring a professional to assist in the search.

Protecting Common Law Trademarks

In spite of the fact that common law trademarks offer a shield against infringement in a particular region, they may not be the best choice in the long run. After all, since common law trademarks are not registered with the federal government, they are subject to regional restrictions and are difficult to enforce.

Generally, the only way to obtain long-term, federal protection for your common law trademark is by registering it with the USPTO. This will grant the rights to use the ® symbol and defend your brand against infringement. Moreover, registering your trademark may add value to your business’s net worth.

Bottom Line

No matter how small or large your business is, it is important to protect your brand. Although you may want to consider registration with the USPTO as your business continues to grow, establishing a common law trademark is an excellent first step. Whether you want to learn more about common law trademarks or are looking to finally register a trademark with the federal government, it is highly recommended to speak with a reliable intellectual property attorney.

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