What Should You Know About Common Law trademarks?

As a business owner who wants their business to be successful, you should always strive for your business to be distinct. That way, your customers won’t mistake other businesses for yours, and you can make your desired profit.

One way your business can be distinct is by trademarking. This protects your business and ensures that competitors don’t steal your brand. A trademark protects your business name, logo, symbol, and other things related to your business, even when you haven’t formally registered the business.

To be effective, you need to use the superscript symbol “™” on your brand name. However, this is only effective if you’re the first person trademarking the brand in your location.

For example, if you trademark your brand in Houston, no one else can use it in that geographical location. Idea theft is a thing, and that’s why some people hire a trademark attorney in Houston to prevent it from happening.

This is something you should prepare for too. But there is more to common law trademarks, and as a business that wants to be distinct, you should definitely keep a few things in mind. Read on to learn more about common law trademarks.

4 things to know about common law trademarks

Protecting your business through a trademark before registering it federally is a good idea. While you might be eager to protect your business from copycats, you need to be knowledgeable about common law trademarks and be sure you’re not infringing on another person’s intellectual property.

With that said, here is a list of four things you should know about common law trademarks:

1.   How to establish common law trademarks

The first thing you should know is how to establish common law trademarks. Here are some steps to take to do that:

●     Check if the trademark is available

Ensure that you are not using an already trademarked name, symbol, or logo. To do this, you will need to research carefully and be sure no one in your location has done so. This can be a bit difficult as they are not in the USPTO database since they are not yet federally registered.

As such, it won’t be as easy as sifting through a database to check if your idea is unique. You may have to do some tedious work, such as searching on the internet, and other sources, including local newspapers, industry publications, and public records.

You should also check for alternative spelling, similar-sounding words, and plural and singular forms. You could eliminate that stress by hiring a trademark attorney in Houston.

●     Show proof of prior use

To use a trademark, you need to show that you have been using the name, symbol, or logo within the geographical area for a while.

●     Show that you are the first user

Trademark laws will only protect the first user of the trademarked idea. The moment you add the “™” superscript in your location, you’re considered the first appropriator.

●     Show proof of actual and continual use

To establish a common law trademark, you need to show proof that you have used the trademark in the past for commercial purposes and that you’re still using it. You must have used it long enough publicly to claim infringement protection, which extends for as long as you use it.

●     Add the ™ symbol

Until you federally register the business, you must use the ™ symbol for your trademark. When you register it, you can then use the ® symbol.

2.   Common law trademark rights

As a trademark owner, there are several rights you can enjoy. Some of these rights include:

  • Extended Trademark protection. You can enjoy trademark rights without registering your business as long as you have trademarked the idea.
  • Protection in your state. Common law trademark allows you to use your trademark within your business territory and state. Until you register the idea federally, someone else can use the idea in another state in the United States.
  • Legal protection from competitors. You can stop competitors within your geographical location from using the trademark. However, you cannot sue them unless you have it registered. If you have done that and notice someone else using it, you can hire a trademark attorney and claim your rights.
  • Use of the ™ symbol. You have the right to use the ™ symbol to protect your trademark until you register it.

3.   Common law trademark infringement

A trademark infringement occurs if someone new within your location starts using your trademark as theirs. You can check the common law trademark rights to know what qualifies as an infringement and check whether an infringer used a name, symbol, logo, or phrase similar to yours in a way that customers can confuse the two.

In that case, you can send a cease-and-desist letter to the infringer. If that fails, you should hire a trademark attorney to file a lawsuit. After this, you need to show a history of usage and evidence that customers associate the symbol with your business specifically.

4.   Common law trademark limitation

It is important to note the limitations of common law trademarks. That is, they are limited to specific geographical areas; until you have registered it, you cannot claim infringement rights if someone in another state uses it.

This is why you should consider registering your trademark after using it for a while. Once you do that, you can file lawsuits against infringers in federal courts rather than local.


Common law trademarks exist so that new and small business owners can operate within a geographical location and excel without worrying about competitors stealing their design, logo, or brand name. As a business owner operating within a location, you should be aware of the laws and your trademark rights.

One thing you should do before trademarking is to confirm whether it is truly unique to you so you can avoid any problems later on. In addition, you should protect your trademark, or you might lose your right to infringement protection if another business owner registers it before you.

Lastly, if you live near Houston, you should contact a trademark lawyer in Houston. They will come in handy in case of trademark infringement.

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