Common Law Rights
The term “common law” indicates that the trademark rights that are developed through use are not governed by statute. Instead, common law trademark rights have been developed under a judicially created scheme of rights governed by state law. Common law trademark rights are limited to the geographic area in which the mark is used.
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Trademarks: A trademark protects words, phrases, logos, graphic symbols or designs, or a combination of words, phrases, logos, symbols, or designs. Trademarks enable consumers identify the source of the goods or services used in commerce in order to distinguish it from competitors. Trademarks can also be acquired on distinctive shapes or packaging, commonly known as trade dress.
Federal Trademark Rights: Federally registering a trademark permits a trademark owner to protect the mark against potential infringers, who may use similar marks in commerce. It also places everyone on constructive notice and allows the trademark owner to assert trademark rights in a federal court.
Length of protection: Trademark protection lasts indefinitely as long as the owner uses the mark in commerce. However, once the commercial use of the goods or services related to the trademark is ceased, the owner’s trademark protection in relation to those goods or services may also extinguish.
Types of Trademark Application: There are two (2) types of trademark applications – 1) Intent-to-Use, 2) In Commercial Use. An intent-to-use application allows a trademark owner to get a filing date with the USPTO when the mark is currently not used in commerce but are intended to in good faith in the future. In-Use applications are filed when the trademark owner is currently using the mark to identify the related goods and services in commerce.
In-Commerce: The types of commerce encompassed for in commerce use is interstate, territorial, and between the United States and a foreign country. A purely intrastate commercial use does not provide a basis for federal registration. However, if intrastate use directly affects a type of commerce that Congress may regulate, this constitutes use in commerce.
Trademark Search: Trademark searches are not mandatory, but are highly recommended. They avoid pitfalls by highlighting prior registered, pending, and common-law marks identical or closely identical to the owner’s mark. Searches enable trademark owners to save money and help determine whether the mark is strong or weak.