COMMON LAW TRADEMARKS

Many trademark owners do not realize that it is not necessary to register a mark to have rights in a trademark. ALL trademark rights in the United States result from use of the mark in commerce. What this means is that just by using a mark, the user has certain rights in a mark. 

The scope of these rights is defined by the scope of the use of the mark by the owner.  For example,  Cape Cod, Inc., is the owner of a custom framing business in Chatham, Massachusetts used the mark OLD CUSTOM FRAMING (no relation to any known existing company) in connection with custom framing services  since January 2019.  The owner was selling product only on Cape Cod and no where else. 

In January of 2020, another company, Boston, Inc.,  began using the mark in Boston and then began expanding its services to include Cape Cod.  Because Cape Cod, Inc., had established use on the Cape prior to Boston, Inc.'s first use, Cape Cod, Inc., can prevent Boston, Inc. from using the mark on Cape Cod.  

The rules regarding common law rights and registered rights are complex.  We can provide experienced guidance in resolving these issues.