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Questions about common law trademarks

You have heard the term "common law marriage," but have you heard of a "common law trademark?" In a common law marriage, two people consider themselves married although they haven't gone through the legality of registering their marriage. It is the same with a common law trademark; a trademark is being used that has not yet been registered.

Also, just as the law recognizes common law marriages in some states, a common law trademark is recognized. Unfortunately, though, if it is not registered, someone else may accidentally or intentionally embark upon the use of the same mark. This results in having to prove who first put the trademark into use.

Do common law trademarks have any protection?

In the U.S., a common law trademark is established the first time it is used in commerce within a geographical area. It should be displayed with the superscript symbol "TM." Unlike international trademark laws, the U.S. trademark law relies on the common law instead of the first-to-file law. Therefore, if you are the first to use it, the trademark is considered yours.

Are there any benefits to using a common law trademark?

Having a common law trademark prevents other businesses in your geographical area from using your mark or any similar mark. Even a similar mark could make customers believe the other business is linked to your business.

Are there any negative issues associated with having a common law trademark instead of a registered trademark?

The biggest issue with a common law trademark is that the mark is only protected within your geographical area. In other words, if you live in California, someone outside of your state could decide to use your trademark in the same business.

Also your trademark will not be listed in trademark databases to prevent others from using it.

Do you need a trademark attorney for a common law trademark?

It is not necessary, but best to have a trademark attorney. Common law trademarks can be more difficult to protect than registered trademarks.

What a trademark attorney can do you ...

A trademark attorney can make sure your mark is not infringed upon by conducting research at regularly scheduled intervals. They can also provide trademark litigation in the event that your trademark is infringed upon.

Source: upcounsel, "Common Law Trademark: Everything You Need to Know," accessed Jan. 10, 2018

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