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Common Law Trademark Explained

In many countries, one must formally register a trademark or service mark in order to establish ownership rights that cannot legally be infringed upon. That's not the case here in the United States. Here, under common law trademark rights, you essentially establish your rights to a trademark or service mark the moment you create and begin using them. But if you believe that means formal trademark registration is unnecessary for your business's success, think again.

US trademark law is governed primarily by the Lanham Act. Enacted in 1946 and named for then-Texas State Representative Fritz G. Lanham, a staunch proponent of strong trademark protection, the act prohibits trademark infringement, trademark dilution and false advertising, among other dubious activities. Under the Lanham act, common law trademark rights are acquired automatically when a business begins using a name or logo in commerce, and those rights are enforceable in state courts.

But on federal level, things are a little different. Both marks registered and unregistered with the US Patent and Trademark Office are granted some degree of federal protection under the Lanham Act. However, marks that are registered on the USPTO's Principal Register are afforded a much higher degree of protection than are unregistered marks, including the ability to enforce your trademark rights in federal court.

Benefits of federal trademark registration include:

  • Public notice of your claim of ownership of the mark;
  • A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration;
  • The ability to bring an action concerning the mark in federal court;
  • The use of the US registration as a basis to secure registration in foreign countries;
  • The ability to record the US registration with the US Customs and Border Protection Service to prevent importation of infringing foreign goods;
  • The right to use the federal registration symbol ®; and
  • Listing in the USPTO's online databases.

Each of these benefits will significantly boost your ability to protect your trademark or service mark against infringement. To help assure you'll enjoy those benefits, contact Daniel Law Offices at 866-37PATENT. The Orlando-based firm also has appointment-only offices in Tampa and Jacksonville and serves clients nationwide. 

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