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Trademark Registration

Common Law (™) v. Registered (®) Trademarks

You do not need to actually register a trademark search to obtain some basic, or “common law” rights in your brand. In fact, common Law trademarks are automatically created the moment you distinguish your brand from that of a competitor. 

Trademarks claiming these protections often show a “TM” or “SM” symbol next to the mark. However, common law trademarks only provide “territorial” rights, meaning they only apply in markets where you are the first user. If, for example, you opened a restaurant in Texas and relied only on your common law trademark then you would be unable to stop a competitor from opening a similar restaurant in New York unless you were also the first to use the mark in New York. Further, if you ever needed to litigate against this competitor for trademark infringement you would have to argue and prove first use of your mark in every single market at issue.

Primary v. secondary Registrations

Among the many benefits of federally registering your trademark search, one of the best is that it counts as a presumption of first use in every market across America, whether or not you have actually entered that market. This shifts the burden of proof to your competitors to show at court that they were the first to enter each market, where the mere registration of your mark counts as your proof of first use. This is a much more efficient way to protect your trademark search than mere common law. Registered trademarks have the privilege of showing the “®” symbol next to the mark. Also, registering your trademark establishes long-term strategies not available to common law trademarks, such as making your trademark “incontestable” at court or enlisting the U.S. Customs and Border Control to intercept products that infringe your trademark.

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