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How do you establish rights in a trademark?

       By Attorney Diane Littlejohn

Does an unregistered trademark have any trademark protection?

In some cases, Yes.

Trademark rights are established through either use or registration in the United States.  However, a business owner may establish a common law right for their trademark.

How do you earn a common law trademark?

A common law trademark is earned by simply using the trademark in association with the business or product.  Unlike a federal trademark, there is no application process for establishing a common law trademark.

But a common law right in a trademark is not as expansive. Common law rights are typically limited to the geographic location that the mark is being used.  In other words, the state, region or the city where the brand owner is using the mark.   So if a business owner has a yoga studio in Florida with a unique name, operates the studio for many years, but fails to obtain a federal registration in the mark, another yoga studio owner in Colorado can open and operate under the same name and likely not be in danger of infringement.  The Florida yoga studio owner has a common law right to operate under the name in Florida, but not in Colorado.

In some cases, a common law trademark may have priority over a federally registered trademark.   Typically, this occurs because the common law trademark has an earlier, proven first-use date that can combat the federal trademark’s rights in a certain region.

Common law trademark rights are not as easily enforceable as a federally registered trademark.  A federally registered trademark provides protection throughout the United States, while a common law mark is just in the region or locality where the business operates.

The best method and the only way to truly protect your common law trademark is to seek federal registration.

Contact Littlejohn Law Offices today to discuss registering your trademark!