Registered trademark vs common law [Expert Advice]

Last updated : Aug 20, 2022

What is the difference between trademarks and registered?

What is Trademark vs. Registered? The trademark symbol (TM) is a mark that companies often use on a logo, name, phrase, word, or design that represents the business. The registered symbol (R) represents a mark that is a registered trademark with the United States Patent and Trademark Office (USPTO).

What is common trademark?

A common law trade mark is an unregistered trade mark which has been used (such as a brand name or in advertising) in relation to certain goods or services to such an extent that it is recognised as distinguishing the goods and services of the business using that mark from those of other businesses.

Can common terms be trademarked?

Common words and phrases can be trademarked if the person or company seeking the trademark can demonstrate that the phrase has acquired a distinctive secondary meaning apart from its original meaning. That secondary meaning must be one that identifies the phrase with a particular good or service.

What is the difference between a registered and unregistered trademark?

Difference Between Registered and Unregistered Trademark The fundamental difference between the two is regarding securities of trademarks and unregistered trademarks. A registered trademark is protected under the Trademarks Act while an unregistered trademark can claim its property under common law.

How long does a registered trademark last?

A federal trademark lasts 10 years from the date of registration, with 10-year renewal terms. Between the fifth and sixth year after the registration date, the registrant must file an affidavit to state that the mark is still in use.

Which is better TM or R?

TM denotes that you are claiming a right to use your brand as a trademark, although it may not yet be registered with the relevant IP office. (R) signifies that your trademark is officially registered with the IP office in the country and for the goods and services that you are using it for.

What are common law rights?

Common law rights are individual rights that come from this “judge-made” law and are not formally passed by the legislature. Often, common law rights become statutory rights after legislatures codify judicial decisions into formal laws.

Can you have a trademark without registering?

An unregistered trademark is a mark that has not been registered at the U.S. Patent and Trademark Office (or at any of the state trademark offices). Owners of unregistered trademarks nevertheless have legal rights within the geographic areas in which they operate.

Which countries recognize common law trademark rights?

Countries that recognize some form of common law trademark rights include the US, the United Kingdom (UK), Australia, Canada and India. Assessing the availability of a trademark may involve searching and analyzing trademark use and registration data from a variety of sources, including: ∎ National trademark registries.

What terms Cannot be trademarked?

• Proper names or likenesses without consent from the person.
• Generic terms, phrases, or the like.
• Government symbols or insignia.
• Vulgar or disparaging words or phrases.
• The likeness of a U.S. President, former or current.
• Immoral, deceptive, or scandalous words or symbols.
• Sounds or short motifs.

What Cannot be registered as a trademark?

Trademarks which contain or comprise matter likely to hurt the religious susceptibilities of any class or sections of citizens of India. Trademarks which contain or comprise scandalous or obscene matter. If the usage of the trademark is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

Is Nike Just Do It trademarked?

Just Do It or JDI for short (stylized as JUST DO IT. and set in Futura Bold Condensed) is a trademark of shoe company Nike, and it is one of the core components of Nike's brand. The slogan was coined in 1988 at an advertising agency meeting.

What is the use of registered trademark?

A trademark: Identifies the source of your goods or services. Provides legal protection for your brand. Helps you guard against counterfeiting and fraud.

Can a registered trademark be challenged?

A person can appeal to cancel the registered trademark only if they have been affected by the existence of such a trademark. The authority validates it under the following grounds: When it confuses or dupes any existing trademark. When a different person uses it and not the registered owner.

What are the three types of trademarks?

What you'll learn: Arbitrary and Fanciful Trademarks. Suggestive Trademarks. Descriptive Trademarks.

Can you lose a trademark if you don't protect it?

If you don't enforce your trademark, you risk losing reputation, business, sales, customers, and more to the infringer. There's also a concept in trademark law called abandonment. Generally, if you don't use your mark for three years or more, it's considered abandoned.

Can I use TM on my logo?

You can claim a trademark on anything by using the TM Symbol, but you can't use the registered trademark symbol (R) unless you have registered the trademark with the US Patent and Trademark Office.

Can I just put a copyright symbol on my work?

You can place the copyright symbol on any original piece of work you have created. The normal format would be to include alongside the copyright symbol the year of first publication and the name of the copyright holder, however there are no particular legal requirements regarding this.

What does R and TM and C mean?

TM, R and C symbol are used with a trademark or copyright to indicate that intellectual property is registered by its owner or inventor and that the owner has right to file a complaint or can take any business to the court if they have stolen the idea or any other intellectual property belonging to the idea owner or ...

What is an example of a common law?

What is an example of common law? The concept of common-law marriage, which acknowledges similar rights as those that have a marriage license to couples that are not officially married if several conditions are met, is one example of common law in action today.

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Bon genican King presents trademarks common law versus federal registration trademarks can be highly valuable assets for a business a trademark is a distinctive mark a name a logo a shape color sound or any combination of these that serves to distinguish one party's goods and services from those of another in the United States certain trademark rights may arise through use of the mark these are called common law rights under common law no registration or filing is necessary rights may attach under state law when a distinctive mark is the first to be used in commerce in connection with particular goods and services it must be used continuously and you must prove that consumers associate that distinctive mark with the particular goods and services however common law trademark rights are limited to the geographic region in which they are used for example if a product is marketed and sold in New York State only trademark rights under common law would be limited to New York State to obtain greatest protection for trademarks federal registration with the united states patent and trademark office should be considered federal trademark registration provides many benefits and advantages over common law rights first federal registration provides nationwide exclusivity this can be of critical importance in today's Internet age especially when almost every business has a nationwide online presence to the use of web pages Twitter Facebook Linkedin etc second federal registration can be searched via the united states patent and trademark office online database and for companies who search that database they will see your federal registration and potentially be discouraged from using those marks as well as confusingly similar marks which can prevent issues before they arise third if you need to enforce your trademark federal trademark law provides many advantages in court for example in court you will have a legal presumption that your federal trademark is valid whereas your opponent will have the burden of proving that your trademark is not valid additionally attorneys fees and triple damages may be awarded in instance of willful infringement fourth federal trademark registration allows you to register that mark with the US Customs and Border Patrol office customs can prevent the import of goods that bear you a registered trademark but are not authorized by you this can be key in preventing foreign counterfeits fifth federal trademark registration allows you to use the are in a circle symbol unregistered trademarks cannot use the are in a circle symbol and this can provide you marketing cachet but more importantly it tells your competitors that you have federal rights in that trademark these are just some of the advantages of federal trademark registration over common law rights having a federal trademark registration can give you an edge over your competitors and is generally considered a prudent investment in today's market bond genican king experienced commitment to service and value from a law firm anticipating and responding to your unique needs

Thanks for your comment Marybeth Kruzel, have a nice day.
- Richard Wirsing, Staff Member

hi my name is Aaron Stewart and I'm an attorney in Northern California my business focus is on business law estate planning and intellectual property now today I'd like to talk to you about trademarks with a trademark there are basically two areas of law that apply at least in the state of California or rather two schemes one is your common law trademark rights and the other are your federal trademark rights now common law what that means is basically what your state law is going to say about your trademark generally that's called an unfair competition law and that basically means that you start acquiring the ability to protect the mark that you're using when you start using it in commerce common law rights though are very limited in the sense that they are limited to the geographic scope in which your products or services apply so that if I start a business in Northern California and I have a certain trademark associated with it and somebody starts a competing business out in Washington chances are I can't enforce my trademark rights because at a common law level they don't expand that far now that's where federal registration comes in federal rights one of the most important aspect to them is that it gives your mark federal nationwide constructive notice of the validity of that mark and what I mean by constructive notice is that everyone in the nation is presume to know that your mark is valid at least for those goods and services that it's registered under and so that means that you're no longer restricted to your own geographic area so if somebody starts a competing business on the other side of the nation you have a legitimate chance of sending them a cease and desist letter and preventing them from doing that which is a lot stronger right than just being able to stay in your own state because it can work the other way around you may think well I'm never going to expand my business out of this certain geographic area so the juice really isn't worth the squeeze for the federal protection but if somebody else has an idea to use that mark at a nationwide level and they start using it later than you it is possible they could register it and some time later contact you and say please stop using your mark there are obviously more issues that are involved with that having to do with priority but the point is is that it can cause you some problems so even if you don't intend on using your trademark registration as a sword it's a good idea to have it as a shield so for the two hundred and seventy-five dollars it costs for the filing fee of a trademark application it's usually a pretty good idea to put forward if you're able to if you have more questions about what's involved in a trademark application or whether or not you can trademark your mark please give me a call at my law firm or contact me through my website thank you

Thanks barbiepopQ your participation is very much appreciated
- Richard Wirsing

About the author

Richard Wirsing

I've studied foreign policy at Barclay College in Haviland and I am an expert in strategy. I usually feel gloomy. My previous job was marriage and family therapists I held this position for 22 years, I love talking about embroidery and metaverse. Huge fan of Issac Newton I practice windsurfing and collect for sports cards.