Understanding Unregistered Trademark Rights: A Guide by Daniel Ross and Associates

Many are familiar with registered trademarks, but common law trademark rights are a lesser-known aspect that can provide some baseline assistance in protecting brand identity.

What are Common Law Trademark Rights?

Common law trademark rights are established through the actual use of a mark in commerce, even if the mark has not been registered with the United States Patent and Trademark Office (USPTO). These rights are rooted in the principle of ‘first in time, first in right’, meaning that the first entity to use a specific mark in commerce for particular goods or services has the rights to that mark.

Common law rights provide the trademark owner with the ability to enforce their trademark against subsequent users in the geographical area where the mark is used. However, these rights are limited in scope compared to federal trademark registration, which offers nationwide protection.

Priority – The Race to Use

Priority in trademark law refers to the right of the first user of a mark to prevent others from using a confusingly similar mark for related goods or services. Establishing priority is crucial when disputes arise between parties claiming rights to a similar or identical trademark.

To establish priority under common law, one must demonstrate:

  • Actual use of the mark in commerce.
  • Continuous and uninterrupted use since the claimed date of first use.

It’s important to note that simply creating a mark or intending to use it in the future does not establish rights or priority. Usage is key.

The Benefits and Limitations of Common Law Trademark Rights


  • No registration fees: Common law rights are established through use, not registration, which saves on costs.
  • Immediate rights: Rights are established when you start using your mark in commerce.


  • Geographical limitations: Protection is limited to the area where the mark is used. Websites and online stores are not enough to broaden a mark’s scope – the business must have some physical or advertising presence in the region in question.
  • Burden of proof: The common law trademark owner has the burden of proof in legal disputes; they’re required to establish both the date of first use and proof of continuous use. This can often come down to timestamped website screenshots or picture metadata.

Enhancing Protection with Federal Registration

While common law rights offer a certain level of protection, registering your trademark with the USPTO enhances your rights and makes enforcing your trademark significantly easier. Benefits of federal registration include:

  • Nationwide protection and exclusive rights to use your mark.
  • Government presumption of ownership and validity of the mark.
  • The right to use the federal registration “R” symbol.
  • Public notice of your trademark rights
  • The ability to obtain an international trademark registration using your U.S. registration as a basis
  • The ability to declare “incontestable” status of your trademark after five years of registration
  • U.S. Customs and Border Protection assistance to prevent the import of infringing foreign goods
  • Ability to file an infringement lawsuit in federal court.
  • Eligibility for statutory damages in cases of counterfeit.

Understanding the intricacies of trademark law, priority, and common law rights is vital for businesses looking to safeguard their brand identity. While common law rights offer some level of protection and can be a good start for a new company, securing a federal trademark registration grants the highest level of trademark rights and protection under law.

At Daniel Ross and Associates, we are committed to ensuring that your digital brand remains protected, both now and in the future as you grow.  If you have questions or would like assistance with the trademark process, feel free to reach out to us by phone, email, or webform in our “Contact” section.

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