A common law trademark is a trademark established solely through use in commerce in a specific geographical area. Business names, logos, and phrases that are regularly used–even though they have never been federally registered–can all be considered common law trademarks. The rights associated with common law trademarks are regionally limited and not as easily enforced as a federal trademark, but common law marks are permitted to use the ™ symbol (learn more about trademark symbols here).
Common law versus federal registration
A common law mark is obtained simply by using the trademark in association with your business or product. Unlike a federal registration, there is no application process for common law trademarks; additionally, there are no fees associated with attaining a common law mark. While common law marks are effortless to obtain, enforcing them is much trickier–and while the trademark owner can prevent those in their locale from using marks similar to theirs, that authority does not have the same nationwide range as a federal registration.
While federal trademarks have some obvious advantages over a common law trademark, there are some cases in which a common law mark may prevail over a federal registration. Typically this occurs because the common law trademark has an earlier, proven first-use date that can combat the federal trademark’s rights in a certain region. Common law trademarks can also hinder a federal application if a proper clearance search was not performed prior to the application’s submission to the USPTO. In order to ensure a new trademark may not run into issues with an existing common law mark, the clearance process for new trademarks should include deep interest searches, industry-specific directory searches, business filing searches, social media searches, and even a domain search. To ensure that each search is thorough and accurate, many applicants opt to hire an experienced trademark attorney to conduct the clearance search.