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What is a common law trademark?

Written by Jan Buza

Co-founder of Trama

A common law trademark is a trademark right established through actual use of a mark in commerce, without formal registration. In first-to-use jurisdictions like the US, a business that uses a distinctive mark in connection with specific goods or services in a geographic area acquires rights to that mark in that area through use alone, even without filing a trademark application.

Common law rights are more limited than registered trademark rights in two important ways: they are geographically restricted to the area where the mark is actively used, and they are significantly harder to enforce because the owner must prove both the prior use and the geographic scope of those rights in any dispute. A registered trademark provides nationwide rights from the registration date, which is considerably easier to establish and enforce.

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