Common law trademark rights are an extremely important concept in trademark law. In the United States, owners of common law trademark rights have significant protections against others who may seek to use a confusingly similar trademark to advertise and sell related products or services. These rights can be enforced in a court of law and monetary damages may be awarded to a trademark owner whose common law rights were found to have been violated by someone else.
Trademark are extremely valuable forms of intellectual property and even more important business assets. Trademark owners must establish their legal right to their marks in order to properly safeguard them from possible infringement. To obtain the maximum protection available under the law, trademark owners should strongly consider obtaining a trademark registration issued by the United States Patent and Trademark Office (USPTO).
In the world of commerce, the ® registered trademark symbol (known as the “Circle R”) conveys a very important meaning. The registered trademark symbol signifies that a trademark or service mark has been federally registered with the United States Patent and Trademark Office (USPTO). It’s regularly used by owners of registered trademarks to put the world on actual notice of their federal trademark rights and to deter others who may be considering adopting an identical or confusingly similar mark.
As a side note, just because you see the registered trademark symbol next to a trademark, don’t assume that the mark is actually federally registered. It’s very possible that the registration may have been cancelled, the mark was never registered to begin with, or the mark is merely the subject of a pending trademark application that has not yet matured into a registration. So, if you ever want to know for sure whether a particular trademark is registered, you’ll have to conduct a thorough and comprehensive federal trademark search.
You’ve likely seen the “TM” trademark symbol used in combination with various trademarks. The “TM” trademark symbol is widely utilized by individuals, businesses, and organizations to alert the public of their claim of ownership in a particular mark. Of course, using a “TM” doesn’t necessarily mean that the user of the mark actually owns any common law trademark rights or federal trademark rights whatsoever. For example, if I was to start selling soda under the name “COCA-COLA™,” I’d be a dirty little infringer since I clearly cannot obtain any trademark rights in the famous COCA-COLA name.
Once a trademark is registered with the United States Patent and Trademark Office (USPTO), the owner of the trademark may use the “®” registered trademark symbol in place of the “TM” in order to provide notice to the world that the trademark is federally registered.
When prospective clients contact me about registering their trademarks, they often ask me whether they’re able to protect a trademark in the United States if they don’t get a United States trademark registration. Oftentimes, these are new start-up businesses that want to protect a trademark but are on the fence as to whether they should spend the money on filing a trademark application if their trademarks already have a minimal amount of protection.
Trademarks are categorized by their distinctiveness or, in other words, their relative ability to distinguish your particular products and services from those offered by your competitors. The more distinctive your name is, the broader scope of trademark protection it receives and the easier it is for you to secure a United States trademark registration issued by the United States Patent and Trademark Office (USPTO).
It has been my experience over the years that people are generally confused about the differences between trademarks, copyrights, and patents. Although all of them are extremely valuable forms of intellectual property, they are completely distinct from one another and serve very different purposes.
What is a trademark? Well, a trademark typically refers to a word, phrase, logo, symbol, or character (or combination thereof) that’s used in connection with the advertising and sale of products and services, and that serve to indicate the source of those products and services. Some very famous trademarks include DISNEY, MCDONALD’S, COCA-COLA, MICROSOFT, and JUST DO IT. These trademarks are often used in association with different fonts or logos, which are also separate trademarks. For instance, MCDONALD’S is commonly seen with the “golden arches” logo, while JUST DO IT is often used next to the famous Nike “swoosh.”