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How to Establish a Common Law Trademark

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Not so long ago, creating a company required an aspiring business owner to “set up shop” at a physical location. Then, the business owner would make contacts within the surrounding communities and advertise their goods and/or services by word-of-mouth or perhaps by advertising via postal mail or in catalogs. Nowadays, anyone can create a business and begin selling to the public online within a matter of minutes. As a result, competitors crowd industries, all vying for the attention of every last potential consumer. With the market operating under these saturated conditions, savvy business owners have started to recognize that without a solid branding strategy, their companies will never stand out from the rest of the pack.

Branding takes many forms. Most commonly, companies use logos, slogans, catch-phrases, various graphics, and even the domain names for their websites to reinforce their unique identities and the unique nature of their goods and/or services. If you own a business, know that it is critically important to legally protect any unique branding that your company employs. Without formal legal protection, your trademarks remain vulnerable to infringement, which could compromise the effectiveness of your branding and hurt your bottom line. Also, if you don’t legally protect your marks, a competitor might and then sue you for compromising their formal rights to your work. If you’ve already had branding strategies in place for some time but have not yet protected them, don’t panic. You may be able to take formally register the trademarks you’re currently using.


What Is a Common Law Trademark?

Common law trademarks is another term for unregistered trademarks. Any mark used in commerce that has not yet been formally registered by the United States Patent and Trademark Office is a common law trademark. Your company has common law trademark rights to any unique branding it uses in the marketplace, provided that it isn’t already owned by another intellectual property rights holder. As a result, if you are seeking to “establish” common law trademark rights, you’ve already done so simply by using your original mark(s) in commerce.


Legally Protecting a Common Law Trademark

Is it “enough” to simply possess common law trademark rights? Not usually. Most of the time, companies benefit from formally registering their marks with the United States Patent and Trademark Office. If a competitor was to infringe upon your mark by using it in commerce, you could work with an intellectual property attorney to hold that competitor accountable in court. If you have a mark registered with the USPTO, you’ll have concrete proof that the intellectual property rights associated with that mark belongs to you. However, if you only have common law trademark rights, you’ll need to prove that your company used the mark in commerce first. This can be a challenging feat, depending on how long you’ve used the mark and in what ways you may or may not have documented your branding efforts over time.

It is also worth noting that common law trademark rights are more nebulous than formal, federal trademark protections are. Trademarking your company’s name at the federal level will protect it across your industry. “Delta” is both the name of a prominent airline and an industry leader in faucet and fixture industry. But because “Delta” is trademarked in both cases, no other airline or faucet manufacturer can assume that name. Common law trademark safeguards tend to be narrower. Your common law trademark protection may hold up in court against a competitor in your state, but not necessarily against a competitor located elsewhere. This limited protection can confuse your customers and ultimately hurt your brand.


Intellectual Property Guidance Is Available

The experienced intellectual property attorneys at LawTrades can help. When you schedule a consultation with an experienced LawTrades intellectual property attorney, you’ll be able to ask questions and receive personalized guidance tailored to the unique needs of your company. Our approach is purposefully cost-conscious, so that companies of all sizes and industry types can benefit from valuable guidance. The LawTrades team takes great pride in helping innovative businesses protect and defend their intellectual property rights. We look forward to learning more about your company and about how we can be of assistance to you.


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