Are You Protected If You Haven’t Trademarked Your Business Name?

11 May

Federally trademarking your business name/brand/tagline (for a mere $275 for most TMs) is definitely the best course of action to take once you establish your unique photography brand. However, what happens if you haven’t trademarked your name and you find a competitor using it as well? If they began using the name AFTER yours was established, you may be protected by common law trademark rights.

According to About.com “Common law rights are property or other legal rights that do not absolutely require formal registration in order to enforce them. Federal trademark registration is not required to establish rights in a trademark. Rights called common law rights arise from actual use of a mark. Generally, the first to either use a mark in commerce or file an intent to use application with the USPTO has the ultimate right to use and registration.”

Trademark rights generally go to the person who FIRST used the name in commerce (or first filed an intent to use the mark if it precedes that date).

This is most easily enforceable in the same geographic region in which the mark is used. So, if you only have conducted business in one state (i.e. never sold prints to someone outside of state or traveled out of state to do business) it may only be enforceable in your own state.

Still, Bitlaw.com says it best “Federal registration, if available, is almost always recommended and gives a trademark owner substantial additional rights not available under common law.”

More on common law trademarks to come (hint: they are an important part of the trademark search when you apply for your own mark).

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