What Are Common Law Trademark Rights?

Common law trademark rights are automatic protections that arise from actually using a trademark in commerce and it could complicate your path to trademark registration.

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Updated on: July 31, 2025
Read time: 4 min

If you have a business name, product name, tagline, or logo that you use regularly, you may have common law trademark rights—even if you have never registered your trademarks with any governmental agency.

Trademarks are words, phrases, symbols, or sounds that you use to identify your business. Famous trademarks include everything from the McDonald's golden arches to Nike's “Just Do It" slogan, to the business name Amazon.com. Trademarks are an important tool to prevent other businesses from using similar marks that might confuse your customers.

You acquire common law trademark rights just by using your trademark in your business. You can strengthen those rights by registering your trademarks with the U.S. Patent and Trademark Office, or USPTO.

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Common law trademark rights vs. federal trademark registration

The difference between a common law, or unregistered trademark and a federally registered trademark lies in the amount and geographic reach of your protection.

Common law trademark rights

Common law trademark rights go to the business that uses the trademark first. And you can only enforce a common law trademark in the geographic area where the trademark is used.

For example, if you sell a product only in southern California, your common law trademark may prevent another business from selling the same type of product under a similar name in Los Angeles. But you will not be able to prevent a competitor from setting up shop with your name in San Francisco or elsewhere in northern California. And if your competitor is the first to use the trademark in San Francisco, its common law trademark rights may prevent you from expanding into that market.

If you were the first user, common law rights may preserve your right to use your trademark in your geographic area, even if another business gets a nationwide federal registration for the same mark. However, common law trademark rights can be hard to enforce because there is no public record of your trademark or when your trademark use began.

Federal trademark registration

To obtain federal trademark registration, you must file an application with the USPTO and have it approved. Registering a trademark with the USPTO gives you a legal presumption that you have the right to use the trademark nationwide and prevent others from using a similar mark for the same types of goods or services.

A business in southern California with a federal trademark registration can use its federal trademark rights to prevent a new business from using the trademark on similar goods or services in San Francisco, New York, or anywhere else in the country.

Federally registered trademarks are listed in the USPTO database, potentially deterring others from adopting a similar mark. Federal registration also gives trademark holders the right to file a lawsuit in federal court to enforce their rights. Federal registration also makes it easier to apply for foreign trademark registrations or to stop the importation of infringing goods.

Common law trademarks and trademark searches

Before using a trademark or applying for federal trademark registration, it's important to conduct a thorough trademark search. A trademark search will show whether your mark infringes on someone else's federal, state, or common law trademarks. A comprehensive trademark search has at least three components:

  • A search of the USPTO database. Federal registration will be denied if your mark is confusingly similar to another registered trademark. “Confusingly similar" means that your mark is similar to a registered trademark and is used on the same type of goods or services, so that the public might be confused about their source.
  • A common law trademark search. A common law trademark search can identify a business in your locality that already has common law rights that are superior to yours. It also can find out-of-town businesses whose common law trademarks may hinder you from expanding or limit your rights if you decide to register your mark with the USPTO. A common law trademark search might involve searching business directories, phone directories, and the internet generally.
  • A state trademark search. This involves searching databases for one or more states to find marks that have been registered with states as business names, trademarks, or trade names. A preexisting state trademark registration may prevent you from using your trademark in that state.

The trademark search is an important tool for identifying barriers to using your name, logo, or other trademark, and it increases the likelihood of a successful registration with the USPTO.

Search trademarks for free
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Protecting your common law trademarks

The symbol TM signifies that you claim common law or state law trademark rights or that you have a pending application for federal trademark registration. When you place a TM on your trademarks, you notify others of your trademark rights. This can deter copiers and competitors from using your trademarks on their goods or services.

The registered trademark symbol, ®, is reserved for trademarks that are registered with the USPTO.

As with all trademarks, common law trademark enforcement is up to the trademark owner. If you don't take steps to prevent others from using your marks, you could lose your trademark rights. Enforcement means taking action if you learn that another business in your area is using your trademark. A trademark lawyer can advise you on the appropriate steps to take.

Common law trademarks can protect your business name, product names, logos, and taglines, but the protection is limited. For more comprehensive trademark protection, consider registering your trademarks with the USPTO.

LegalZoom can help you register a trademark with the United States Patent and Trademark Office (USPTO). Get started by completing a simple questionnaire. We'll work with you to assemble your application, and will conduct a trademark search to reveal any potential conflicts. Then, we'll file your completed application with the USPTO.

What would you like to protect?Register 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.

29 days ago
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Confident First-Time Filing

The process was clearly explained, and all of my questions were answered. I feel confident about the next steps, which I appreciated as first-time trademark filer.

David
85 days ago
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I was so impressed with Juan's…

I was so impressed with Juan's step-by-step guidance! It made the trademark process so digestible and easy. He answered any question that came up and made something I was dreading go by quickly and easily.

Amelia Samuels
111 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
114 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
130 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
129 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
136 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
154 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
185 days ago
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Help with trademark

Got exactly what I needed to register my trademark

Luci Bromberg
Rated4.6out of 5 based on24,844+ reviewson

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