A common law trademark is a type of trademark that is not registered with a government agency, but is instead established through use in commerce. A common law trademark is created when a business uses a particular name, phrase, logo, or other mark to identify its goods or services to consumers, and the mark becomes associated in the minds of consumers with the business. Common law trademarks can be protected under state or federal law, depending on the jurisdiction in which the mark is used.
To establish a common law trademark, a business must demonstrate that it has used the mark in commerce in a way that is likely to cause consumers to associate the mark with the business. This typically involves using the mark consistently over an extended period of time, and may require evidence of the mark’s use in advertising and marketing materials.
While common law trademarks can provide some level of protection for a business, they do not offer the same level of legal protection as federally registered trademarks. Federal registration can provide additional benefits, such as the ability shift the burden when bringing a lawsuit in federal court and the ability to block the registration of similar trademarks by other businesses.
The concept of common law trademarks has a long history dating back to ancient times. In early civilizations, merchants and producers used marks or symbols to identify and distinguish their goods from those of their competitors. These marks were often simple and easily recognizable, such as a particular shape or color, and were used to indicate the source of the goods.
Over time, the use of trademarks to identify and distinguish goods and services became more widespread, and the concept of common law trademarks developed. In the common law legal systems that originated in England and have been adopted in many countries around the world, the law of trademarks has evolved through judicial decisions, rather than being codified in legislation. As a result, the principles and rules governing common law trademarks have been shaped by a long history of court cases and legal precedents.
In the United States, the concept of common law trademarks is recognized under both state and federal law. Under federal law, the Lanham Act of 1946 established a system for the registration of trademarks with the United States Patent and Trademark Office (USPTO). However, businesses can also establish common law trademarks through use in commerce, even if they do not register their mark with the USPTO.
Common law trademarks have been in the news recently due to a number of high-profile court cases. These cases involve companies, such as Apple and Starbucks, attempting to protect their trademarks through common law instead of registering them with the USPTO. In these cases, the companies have argued that their trademarks have become so widely known that they have acquired “secondary meaning,” allowing them to be protected under the common law. This has been a controversial issue, as some argue that the common law is not sufficient to fully protect trademarks from infringement.
Apple Computers is currently involved in a common law trademark law suit with Apple Corps. Apple Corps is a multimedia corporation owned by the Beatles and their families. The suit is over the use of the apple logo and the phrase “Apple”. Apple Corp claims that Apple Computers has infringed on their trademark rights and is seeking an injunction to stop Apple Computers from using their logo and phrase. Apple Computer has argued that the two companies have coexisted since the 1980s and that their use of the logo and phrase is not infringing on the trademark rights of Apple Corps. The case is ongoing and a decision is expected soon.