Intellectual Property

What are Common Law Trademark Rights?

McDonald's TrademarkTrademarks can be an extremely valuable asset for your business. Think about the value tied to Nike’s Swoosh or the McDonald’s “golden arches.” Protecting the value behind these trademarks is one important step towards building a wall around your company’s intellectual property. Many people don’t realize that certain trademark rights arise automatically once you begin using a trademark. Today’s post highlights these automatic rights, also known as common law trademark rights.

Common law trademark rights versus registered federal and state trademark rights

“Common law” is a term for the rights that have developed through case law versus statutes or codes. Common law trademark rights arise automatically and give the owner of a particular trademark certain rights (see below) without the need to register the trademarks with any state or federal government agency.

Federal trademark rights, on the other hand, require filing an application to register the trademark with the U.S. Patent and Trademark Office (USPTO). Federal trademark rights offer broader protection than common law trademark rights, but the requirements to register a trademark at the federal level are also a bit more burdensome. Registering your trademark at the state level also has some benefits, including that it’s cheap and quick (compared to the federal registration process), and it can be beneficial for resolving any disputes over use of or ownership of your trademark. Check out our earlier post to learn more about the difference between state and federal trademark rights.

What trademark rights are automatic?

SeattleCommon law trademark rights give the owner of a trademark the exclusive right to use a particular trademark within the geographic area where the mark is being used—this assumes the trademark, or a confusingly similar trademark, is not currently in use by anyone else in that particular geographic area. For example, if I start selling goods under the name “ABC Goods” in Seattle and no one else in Seattle is already using that name, then (subject to some exceptions) I obtain common law trademark rights to that name in Seattle.

Do you need to register your trademark to receive common law trademark rights?

No. Common law trademark rights are automatic and do not require any additional registration to be effective.

If you’d like to learn more about protecting your trademarks, check out our blog series on protecting your IP:

Photo: Mike Mozart | Flickr
Photo: Jonathan Miske | Flickr


Gavin Johnson

Gavin enjoys craft beer and is learning the art of brewing.

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