How to Establish a Common Law Trademark

Wondering what kinds of protection a common law trademark provides and how it's different from a registered one? Look no further.

What would you like to protect?

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how to establish a common law trademark

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Updated on: July 30, 2024
Read time: 3 min

A common law trademark provides protection for a symbol, logo, product name, or other words or marks that identify the source of goods or services before it is registered with the state or federal government. Trademarks help protect consumers from being confused as to the source of a product or service, and, of course, for business owners, a trademark can protect your brand as well.

Indeed, common law trademark protection can be invaluable for small businesses because it provides a way to stop local competitors from using your mark.

Graphic designer looking at paper that says "design" on it and logos on his computer screen

How to establish a common law trademark

Your common law trademark rights begin when you start using the mark in commerce in a particular geographical area. The first person to do this—as opposed to the first person to register with the United States Patent and Trademark Office (USPTO)—owns the common law rights to the mark in that area.

To declare your ownership of a common law trademark, you should add a superscript "TM" to it. Once you start looking for the TM, you will probably notice many common law trademark examples with this symbol.

You maintain common law infringement protection so long as you continue to use the mark, and this protection includes the right to stop someone else in your same geographic area from using the same mark if their use is likely to confuse consumers.

Before you begin to attempt to establish your right to a common law trademark, you should make sure that no one else is already using the mark. Due diligence now could avoid the unfortunate situation of finding out you have infringed on someone else's common law trademark later.

Even if the common law trademark owner doesn't choose to sue you for infringement, you still could face incredible costs to rename and rebrand your business. Besides, you don't want to confuse potential consumers, either.

By its nature, a common law trademark search must be extensive, and likely time-consuming, because there is no central database of common law trademarks as there is for trademarks registered with the federal or state government. Accordingly, an effective common law trademark search must cover various sources, including the internet, public records, and newspapers, as well as searching for registered trademarks in the USPTO trademark database.

When searching, you should think beyond the exact word or mark you'd like to use to determine whether similar variations also could cause confusion. For example, search for similar-sounding words with different spellings, and in both plural and singular form.

Protect your common law trademark

Another important aspect of having a common law trademark is protecting it. You are responsible for "policing" the trademark, which means keeping track of whether anyone else is using it. Failing to police your common law trademark may lead to losing your rights to infringement protection.

Accordingly, you should keep an eye out for competitors in your area that use a confusingly similar mark and, if you come across a potential infringer, contact them to make them aware of your common law trademark. You may choose to do this through a cease-and-desist letter to ask them to stop using the mark.

The difference between common law trademark and trademark registration

If you choose to register your trademark with the USPTO, you receive additional protections and rights, including the following:

  • Protection throughout the country, not limited to your geographical area
  • Right to use the symbol of an R in a circle (®) to denote a registered trademark
  • Listing in the USPTO database to inform others of your use of the trademark

The most important difference, though, is that, with registration, you also gain the right to sue for damages if someone infringes on your trademark. In contrast, there is no right to common law trademark infringement damages.

Dealing with trademarks can be complicated and overwhelming, but you don't have to manage it alone. You may find that working with an experienced online service provider can ease your mind that you're handling your trademarks the right way for your business.

What would you like to protect?Start my trademark
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This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.

83 days ago
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Jose is the best.

Jose was very friendly and knowledgeable. He was able to answer my questions and provide me information of next steps to secure my trademark.

Cheryl Cooper
86 days ago
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The knowledge the agent possessed was…

The knowledge the agent possessed was super beneficial to rectify the situation I was having with my trademark. Very professional!

Craig Schsrfman
102 days ago
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Trademark work is great and effecient

Edit from my previous feedback and why i decided to give them 5stars they deserved: LegalZoom's support team was excellent—they addressed my concerns promptly and delivered a great outcome. I truly appreciate their help and want to give a shout-out for an outstanding customer service experience.

Trademark
101 days ago
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Thanks for being so helpful in the…

Thanks for being so helpful in the assist of getting my Trademark filed. -Patrick

Patrick Thompson
108 days ago
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Kevin was able to help me understand…

Kevin was able to help me understand the process needed for filing a trademark. He was clear in his answers and stayed on the phone to help walk through the onboarding.

Asiyah Lites-Rasheed
126 days ago
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Excellent Serviceed them for a trademark application

Used them for a trademark application. Excellent service. Knowledgeable staff. I would absolutely use them again. Probably save thousands by going through them.

Eric Hertz
153 days ago
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Estee was super helpful!

Estee helped me navigate the tricky trademark process. Highly recommend her!

Greg
153 days ago
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Very good and focused answers

I got a very good and focused answer to my trademark questions. Definitely makes me see LZ as the place to go with my legal questions. A+

Chip Humitz
157 days ago
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Help with trademark

Got exactly what I needed to register my trademark

Luci Bromberg
163 days ago
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I had a consultation with an attorney…

I had a consultation with an attorney through LegalZoom concerning the trademark process. and she was very patient and professional. She answered my questions and helped with the ones I had difficulty asking. I appreciated that

Isiah Jones ,jr.
182 days ago
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Strong support for trademark

The trademard support by Nick Belcastro has been excellent.

John Kirk Boyd
189 days ago
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Excellent service

Excellent service! Extremely knowledgeable and helpful in reviewing all the next steps in the process for filing the trademark with LegalZoom.

Brian Mayer
224 days ago
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Excellent Staff/Services

"LegalZoom made trademark filing for my company a breeze. Their system was incredibly user-friendly, and I was impressed by the professionalism of the staff. My attorney was not only knowledgeable but also took the time to answer all my questions and clearly explain the entire process. I felt confident every step of the way. I will definitely use their services again!"

Hedda
220 days ago
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Register Trademark using LegalZoom

The attorney assign to us did an amazing job by answer all our question in a friendly, timely and professional way. The attorney helps by giving us information to mange our account to register our Trademark.

wiltrey sanders
229 days ago
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Excellent experience with Legal Zoom

I have been looking to get my business trademark for a while now and I finally decided to try out Legal Zoom. I had an excellent experience with customer service ready to assist me through the process. The price is much more affordable than going through law offices. I highly recommend to anyone looking to get a trademark.

TheAlphabetshop
231 days ago
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Legally create your trademark with LegalZoom in 2025 and The Years to Come

The lawyer that assigned to me was not only professional and friendly, but patience beyond measure. All questions answered and additional information given to me as well for future services. This call gave me the reassurance I wanted and needed to continue using LegalZoom for future endeavors, and referring my community/platform to do the same.

Kali Harris
248 days ago
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Trademark Process Made Easy

My LegalZoom Trademark attorney, Asha was extremely professional, friendly and knowledgeable. She answered all my Trademark questions and made this process so easy. I felt like I was in good hands.

Virtually Debbie
255 days ago
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Trademark

Right now I use everything Legal Zoom has to offer and I'm so very happy with everything, especially the Trademark process. They were absolutely the best! Highly recommend!!

NicoleK
Rated4.6out of 5 based on23,948+ reviewson

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