The following is an edited transcript of my video What Are Common Law Trademark Rights?
What are common law trademark rights? These are rights that a business receives from using a trademark, brand name, logo, slogan, or some other indicator or source without registering it. There is not a requirement to register it—many businesses begin using their trademarks before they register them. We recommend registering as soon as possible, but if a business uses a trademark for some period of time without a registration or before they registered, it doesn’t mean that they have no rights.
They have what are called common law rights, which are not necessarily as strong as registered rights. There are limitations. It may be harder to enforce or certainly harder to get damages when you’re relying solely on common law rights, but they do exist and they are valuable. One of the great benefits of registration with the USPTO is that it gives you nationwide protection in all 50 states. Common law rights, on the other hand, may be limited to the geographic scope where the business is located.
For example, a restaurant in Northern California that does not have a trademark registration but has been operating for several years does have common law rights. But those rights may be limited to Northern California because the business may not have transacted any business or be known outside of that geographic area. Geographic scope is another reason that it’s so valuable to apply for trademark registration to have nationwide protection.
