Beware of Common Law Trademarks

Individuals and businesses are constantly considering brand protection. In particular, they usually contact a trademark attorney and say they want to register their trademark. In the United States, that registration would be withg the United States Patent and Trademark Office, or USPTO. Often times, they have already made use of their trademark and do not understand that they already possess common law trademark rights. In the United States, the first person to use a distinctive mark in commerce possesses  Common Law Trademark rights. While Common Law trademark rights are limited to the geographical locations in which the mark was used, they are indeed a valuable piece of intellectual property. However, registering for a trademark with the USPTO provides additional benefits, such as nationwide priority and other rights to use the trademark in other geographic locations. Given the other benefits of a trademark registration, entities shouold always consider protecting their brand beyond Common Law trademark rights.

It is also important for trademark owners who wish to register their trademark to beware of Common Law trademark rights. For example, just because a trademark is not pending or registered with the United States Patent and Trademark office does not mean that you may have ytrademark rights to it. A Common Law trademark used prior to your filing for or actual use of your trademark may have senior rights. Therefore, your use may subject you to claims of trademark infringment. Performing a trademark availability assessment, or trademark clearance search, goes a long way towards identifying these other Common Law trademarks that may exist. However, you can never be 100% certain that there aren't any preexisting uses. Nevertheless, performing a prior search and getting an opinion from a trademark attorney may give you better insight into the likelihood of a trademark infringement issue and also provide defense to a claim of willful infringement, such as innocent infringement, in the event that another Common Law trademark use is found. Given the importance of brands in today's day and age, you should not rely solely upon Common Law trademark rights as a brand owner. Instead, you should pursue a trademark registration with the USPTO. Moreover, in selecting a brand, you should be aware that a search of the USPTO is insufficient to determine whether or not you may have copyright infringement liability. Common Law trademark rights may trump your rights, and as such, you should have a trademark clearance search performed in order to avoid infringment issues in the future. A trademark attorney can advise regarding both Common Law trademark rights and registered rights for you and your company.