In the United States (US) common law rights are automatically granted to trade marks used without registration providing you can prove you were the first to use the mark commercially in your geologic area. Many new businesses are surprised to learn there are instances where common law trade mark protection can be sufficient if a business is based locally and has no current or future expansion plans. You need to register your trade mark if you plan to do business outside your local jurisdiction. Common law rights provide a level of protection but do not allow recovery of profits, statutory damages, and attorney fees if an issue arises.
Several factors are evaluated when determining if a provider has acquired common law trade mark rights, including:
- the public’s association of your mark with the your products/services offered
- whether your mark is distinct of your products/services offered
- whether you exercise control over the quality of your products/services offered
Common law trade mark rights do not exist in European countries unfortunately. The only way to receive protection in Europe is to register trade marks. The laws in Europe require trade mark holders to meet a 5 year use requirement after registration to remain legally binding.