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.
Common Law SearchA common law search means searching for trademarks that are not federally registered. It may involve checking phone directories, yellow pages, industrial directories, state trademark registers, among others, in an effort to determine if a particular mark is used by others when they have not filed for a federal trademark registration.
A common law search is not necessary but some find it beneficial. Telephone numbers for search firms that perform these searches for a fee can be found in the yellow pages of local phone directories and through an Internet search.
- Common Law Rights
- Common Law Search
According to Cornell University, "Under state common law, trademarks are protected as part of the law of unfair competition."
According to Lloyd Rich, "Federal law, known as the Lanham Act, protects marks registered with the U.S. government while state and common law that differ from state-to-state protect state registered and unregistered (common law) trademarks."