What are Common Law Trademarks?

There are many types of intellectual property (IP) protection for the many different types of IP one can have. Each of those types has its own subtypes that can help in specific instances. Some of these subtypes were made long ago for situations that were more common at the time than they are now. One of these subtypes is called common law trademarks. 

Common law trademarks are interesting for how they used to be used, but nowadays, they are usually not as useful as they once were. In fact, we recommend that businesses do not rely on this kind of trademark because it does not offer a fraction of the protections today that it used to. 

If you’ve never heard of common law trademarks, or you want to know what you should have instead, we can explain. The trademark attorneys of Emerson Thomson Bennett have been working with trademarks for years. We want every business to have the IP protections they need, and we’ll explain why common law trademarks are not that.

What is a Common Law Trademark?

A common law trademark is a type of unregistered trademark that’s established simply through use in commerce. Let’s say that you’ve created a unique logo, name, tagline, or other identifying mark for your business. Then you start using it to sell your products or services, and by doing this, you automatically have a common law trademark.

Do Common Law Trademarks Offer Strong Protection?

The rights to a common law trademark are generally limited to the geographic area where the mark is used. Don’t expect your limited use in Scranton, Pennsylvania, to affect a business in New York City or in another country. Even over a century ago before we had the official trademark system, your common law trademark wouldn’t have mattered several towns over.

While a common law trademark offers some legal protections against others using your mark, these protections are typically weaker than those provided by a registered trademark. For example, in a dispute over a mark, the holder of a common law trademark must prove that they used the mark first. While it’s not impossible to do so with a common law trademark, the evidence doesn’t always stand up in court. 

Because common law trademarks aren’t registered, the records you may have of its first usage aren’t likely to be as legally sound as your legal opponent’s. This is why many businesses should register their trademarks, despite the additional cost and effort involved.

When Would Someone Encounter a Common Law Trademark?

1. Expanding a Business: If a business expands into a new area, it might encounter a common law trademark if someone else in that area is already using a similar business name or logo. Even if the expanding business has a registered trademark, it may have to endure a legal suit before it can use its own in this area. If the other business can prove they used it first with their common law trademark, you might never be able to use it in that area.
2. Using a Slogan or Tagline: Some businesses can become lax in how they record and track their IP. Slogans and taglines are technically filed as trademarks, but not every business remembers to do that. Some use new slogans and taglines regularly and never bother to officially trademark any of them. They would have common law trademarks instead. 

What Our Trademark Attorneys Recommend

It doesn’t take you any effort to get any common law trademarks. You don’t have to file for them or maintain them. You just have them. At the same time, if you don’t have to do any work for them, this should show you that they don’t offer you anything. This means that you should not rely on them. 

When you’re preparing for a situation where your IP has been infringed upon, you cannot depend on a common law trademark to protect you. You need to submit your branding, logo, slogan, and/or whatever else to an official trademark office. Then your IP will have actual legal protection from the government. There’s nothing wrong with keeping this extra protection in mind, but it is not something that you can rely on.

Contact Us for Help With Your IP Today

Remember, while common law trademarks offer some protection, registering a trademark with a government agency usually provides stronger, more enforceable rights. It’s often a good idea to consult with a trademark attorney to understand all the potential issues and protections involved.

Our trademark attorneys can help you file for a stronger trademark with the institutions and countries you care about and help you maintain and protect them. Contact us today for more information.