Common law search is an important aspect in comprehensive trademark search process and every professional trademark search service provider undertake this task at some point in their professional life. With this article our main aim is to understand what common law trademark search is all about and how to do it.
What is Common Law Trademark Search?
One of the common misconceptions that are prevailing in the United States about trademark is that these are required by law to be registered, which is not the case, because a party can be held liable for infringing a trademark even if the infringed trademark is not registered.
In fact, the grant of trademarks in the United States is based on a first-use system and trademark rights can be established simply by continuous use of the mark in connection with goods or services. Federal registration is, therefore, not a prerequisite to trademark rights in the U.S.
And, common law trademark search is thus the method to search these trademarks which are not registered federally or are not there in office records.
How to do common law trademark search?
There are plenty of options which are available for searchers to do their common law trademark searches and some of which are as follows:
- National yellow pages
- Top newspapers
- Business names and records
- Financial sources
- SEC filings
- Top internet search engine results
Benefits of doing common law trademark search?
Eradicating likelihood of confusion: Doing a common law search along with other trademark searches could help companies eradicate likelihood of confusion at any point in time at a later stage. It may help companies give customers a clear cut idea about the specific product and the mind behind it. Confusing customers with other brands could be a punishable act.
Avoiding trademark infringement: A common law trademark search could help companies avoid the likeliness of trademark infringement that may appear at a later date as there might be brands that are not in the Government official records.
Avoiding brand devaluation: Conflicting brand names, logos and trademark could be detrimental for businesses as it defame the worth of a brand. No matter whichever side you are in, it may lead to monetary loss and hence it is important for businesses to avoid it right at the beginning. Doing a common law trademark research could help companies ensure that they are not devaluing product of other companies and/or their own.
Federally registered trademarks vs common law trademarks: Contrary to Federal trademark right, common law trademark right has some limitations. In common law, rights conferred to a trademark holder is substantially limited than the rights you would have if you federally registered your mark. Rights from a common law trademark are limited to the geographical area in which you sell or offer your goods or services.