Common Law Trademark – Unregistered Trademark Rights

Common Law Trademark Information

A common law trademark, also known as an unregistered trademark, is a mark that is not registered with the United States Patent and Trademark Office (USPTO). While common law marks do not receive the same rights as registered trademarks, they do have certain legal rights. Excerpts from a detailed article about common law trademark rights are listed below.

  1. You can license common law rights.
  2. You can sue for infringement of unregistered trademark rights.
  3. Common law rights can be used to oppose a trademark application.
  4. A trademark registration can be canceled by a common law trademark.

The common law right must first be established before it can be enforced.

Common Law TM Rights Are Established By Use

Common law rights come into existence when a mark is used to identify and distinguish one’s goods or services from those of others. That is, you must show that you actually used the name in connection with the sale of goods or rendering of services. Federal law recognizes common law trademark rights. Proof is made with photos of packaging, business cards, invoices, documentation, advertisements, commercials. The proof must show how consumers actually see the common law mark in association with the goods or services. To be successful at establishing a common law right, you must show that consumers associate the mark with your goods or services.

The Name You Use Must Qualify for Protection as a Common Law Trademark

Not only must you show use of the name as discussed above, but the words you use must be capable of functioning as a trademark. The name or symbol you use must qualify for protection. The words must be analyzed to show they are capable of functioning as a trademark. A common law trademark can’t be merely descriptive, generic, geographically descriptive, functional, or merely a surname. The name or logo must be capable of distinguishing your products & services from those of others. The less distinctive (or less recognizable) the mark is, the harder it is to establish common law rights in the name.

Common Law Trademark Rights Are Powerful

Unregistered trademark rights can be used to oppose a trademark application. They can be used to cancel a registered trademark. You can sue in court for infringement of a common law unregistered trademark. You can read more for a detailed discussion about common law trademarks and unregistered trademark rights.

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