What is Common Law Trademark?

  • July 18, 2018
  • Registrationwala
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You know, even if your trademark hasn’t gone through the usual trademark registration, you are still the owner of that trademark from the point when you start to use it. If you did not know that then know is the time to know about the entire essence of common law, a law that has been put in place to protect unregistered trademarks.

What can be a common law trademark?

Much like the registered marks, a common law can also be anything from symbols, words, images, graphics or any such combination. As long as it can distinctly identify your product from another, it can be a common law. A common law trademark can use the “TM” symbol along with their marks when they are trading.

The difference between a registered trademark and common law

Following are the difference between a trademark that has been registered and a one who has opt been. These differences are as follows:

  1. A registered mark can make the use of the “R” symbol while a common law mark cannot do the same and the owner has to be content with the “TM” symbol.
  2. When it comes to the matter of unconventional trademarks that lines are still blurred. While a significant amount have been said about registered marks, same is not the case with common law.
  3. When it comes to registered trademarks, they enjoy the right like protection under the government of India. This protection involves the ability to sue the trademark infringers. However, the rights and the protection of common law are limited and they are restricted to preventing misrepresentation of the mark in a particular region.
  4. Registered trademark can cover a lot more ground as compared to the common law marks. It means that the common law trademarks are restricted to a very specific geographical region.

There are many differences between common law and the registered trademark. However, when you boil them down, they end up being condensed as the one that are mentioned above.

Rights of common law trademark

  1. If you and another individual have been using the same mark and the other guy has pursued with trademark registration, then you have the right to oppose it once it is published in the journal. In such cases, the registration is going to be awarded on the basis of prior usage i.e. who has been using the trademark earlier.
  2. The passing off remedy: If the trademark that you have still unregistered has been in usage for many years and has become known and has a lot of good will associated with it, you have the right to assert your claim towards the trademarks that are confusing and dong the same business as you. This form of protection is called the “passing off” of the trademark.

Common law v/s registered trademark registration

This is one of the most common questions that come up when we are talking about common law and registered. Which one is better and why? Well, for one simple reason that your goodwill and your finances will be protected even if your mark isn’t very well known- you should go with trademark registration after a proper and free trademark search There are more rights that you would have, there is more protection of your mark and most importantly, one of those rights is to sue the trademark infringer.

Common law is a good protection, but it is only for a short term. To that end, if you want a more robust protection when it comes to the matter of protecting the mark that signifies your trade, you should go with registration.

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