Benefits Of A Common Law Trademark -
Once your mark (name, slogan, logo, etc.) has been used in commerce, it is automatically protected by trademark laws. Without a Federal Registration, it is considered an unregistered trademark, or a common law trademark. So what rights do you have as a common law owner?
Once you have used your mark in commerce, you can use the trademark symbol in order to give the public notice that you intend to enforce your trademark rights. Once your mark is registered, you can use the ® symbol notify the public of your registration.
Cease and Desist
Although you do not have a registered mark, you can still enforce your mark by sending a cease and desist letter to the infringer if their mark causes likelihood of confusion with your mark. The “likelihood of confusion” standard does not mean that they must be using the exact same mark as yours. The infringer’s mark only has to be similar enough to cause confusion amongst consumers. For example, the mark Cute Clothing is likely to cause confusion with the mark Kyoot Klothing.
In limited circumstances you are able to sue the infringer for infringement of an unregistered mark. However, the entire process will most likely be an uphill battle. This is one of the main downsides to only having a common law trademark.
As long you were the first to use the mark in commerce, you own the trademark rights to the mark. If you decide to forego registering your mark, another user may be able to come along and get superior rights by obtaining a Federal Registration. This is state specific, so you will most likely want to consult with a local trademark attorney if you intend on only enforcing your common law rights. On the other hand, you can still monitor the trademark register in order to oppose infringing trademark applications. This is a lengthy process and it can get very expensive, which is why it is more beneficial to obtain a Federal Registration.
If you find that a Registered Trademark infringes on your mark and you were in commerce before the other mark, you can file a cancellation proceeding. This can also become lengthy and expensive. Essentially, you are letting the trademark board know that you own the rights to the mark and the other mark should have never been registered.
Some businesses believe the trademark process is too lengthy or too expensive. But if you want to maintain your brand awareness, a Federal Registration is a necessity. Yes, you have rights as a common law owner, but the rights as a registered owner far outweigh any common law rights.
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