Trademarks are essential for businesses to protect their brand names, logos, and other identifying marks. While most people are familiar with registered trademarks, there is another type of trademark protection available under common law.
What is a Common Law Trademark?
A common law trademark is a type of trademark protection that arises from the actual use of a mark in commerce. Unlike registered trademarks, which are filed with the United States Patent and Trademark Office (USPTO), common law trademarks are established through use in the marketplace.
When a business uses a mark in connection with its goods or services, it acquires common law trademark rights in that mark. These rights are limited to the geographic area in which the mark is used and to the goods or services with which it is associated. Common law trademark rights do not provide nationwide protection like registered trademarks do.
How to Establish a Common Law Trademark?
To establish a common law trademark, a business must use the mark in commerce in connection with its goods or services. This means that the mark must be used in a way that identifies the source of the goods or services to consumers.
For example, if a business uses a logo on its website and marketing materials to identify its products, it may acquire common law trademark rights in that logo. However, if the logo is not used in connection with the sale of goods or services, it may not qualify for trademark protection.
Why is Common Law Trademark Protection Important?
Common law trademark protection can be valuable for businesses that cannot afford or do not want to pursue registration with the USPTO. It also provides a level of protection for marks that may not be eligible for registration, such as descriptive marks or marks that are too similar to existing registered marks.
However, common law trademark protection has limitations. It only provides protection in the geographic area where the mark is used and for the goods or services with which it is associated. It also requires the business to enforce its trademark rights on its own, which can be costly and time-consuming.
Conclusion
Common law trademark protection is an important tool for businesses to protect their brand names, logos, and other identifying marks. It arises from actual use in commerce and provides limited protection in the geographic area where the mark is used and for the goods or services with which it is associated. While common law trademark protection has limitations, it can be a valuable alternative to registration with the USPTO for businesses that cannot or do not want to pursue registration.
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