A trademark is any distinctive name, slogan, logo, image or other identifying mark that serves to represent a brand and distinguish it from its competition. Some common trademarks that are instantly recognizable to most people are the Nike “woosh,” the McDonald’s “M” and the Starbucks mermaid logo.
Under common law in the United States, trademark rights go to the first brand to use a specific mark – not the first to file for the mark’s protection. That means that even without formal registration, a common law trademark owner still enjoys significant protections and rights.
It’s still better to formally register your marks
Even though the U.S. recognizes common law trademark rights, formal registration with the United States Patent and Trademark Office (USPTO) still has numerous advantages. For example:
- Common law trademarks are generally limited in geographical area. Your trademark isn’t protected outside of your area of business, which means someone could build off your brand identity and consumer trust in another state by using a similar mark.
- It’s harder to enforce your rights over your mark since the burden of proof that you were “first in use” and had acquired recognition in the marketplace is on you in court. That can be legally more complicated and expensive to do when you’re fighting infringement.
- Without registration, your trademark won’t be listed in the USPTO’s database, which means it is less visible to others who are researching trademarks – and that means they may unknowingly infringe upon your rights. That could lead to disputes that could otherwise be avoided.
If you want to protect your trademark to protect your brand, do it right. Legal guidance can help you through the process and make certain your marks are registered.
