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What is the difference between a common law trademark and a federal registration?

There are two primary categories of trademark protection in the United States: common law trademarks and federal registration trademarks. While common law trademarks are easier to establish, they offer limited protection and can pose challenges in enforcement. Conversely, federal registration provides robust, nationwide protection and greater ease of legal enforcement. Understanding these differences is crucial for effectively managing and protecting a brand's identity in the marketplace.

What is a common law trademark?

A common law trademark is established simply by using a mark in commerce. It does not require any formal registration process. The rights to a common law trademark are typically limited to the geographic area where the mark is used. Common law trademarks last as long as the mark is in use.

Because common law rights to the mark are established through actual use in commerce, enforcing a common law trademark can be more challenging, as the burden of proof lies with the owner to demonstrate prior use and ownership in the specific region.

Before spending your time and money on a mark, you should perform a trademark search to determine whether any conflicting existing marks or registrations may impede your use of that mark.

What is a federal registration trademark?

Federal registration trademarks involve registering a mark with the USPTO. This type of trademark offers broader protection under the Lanham Act and is recognized across the entire United States. The registration involves a formal application process with the USPTO and an examination that includes searching for conflicting marks that may have priority. Federal registration of a mark provides public notice of the owner's claim of ownership of the mark and protection across all 50 states, regardless of the actual geographic use of the mark.

As such, a federal registration of a trademark provides a legal presumption of the registrant's exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration. Moreover, a federal registration of a trademark allows access to federal courts for enforcement and the ability to obtain higher damages in cases of infringement.

Before filing a federal trademark registration, you should perform a trademark search to determine whether any conflicting existing marks or registrations may impede your use of that mark.

Do you need to discuss how to secure your trademark rights?

Choosing between a common law trademark and a federal registration depends on a business or individual's specific needs and goals. Pursuing a federal registration is often the preferred route for those seeking comprehensive protection of their marks.

To discuss developing your trademark rights and filing for federal trademark protection, contact TCP Law at or John Laurence by phone at 917-612-1059.


John Laurence TCP Law, Trademark Patent Copyright Lawyer

TCP Law focuses on helping individuals and businesses develop, secure, and enforce their intellectual property rights.

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