Registration of a trademark with the United States Patent and Trademark Office is the best and preferred method of trademark protection because it grants nationwide, prioritized ownership rights. But the costs associated with the application process make federal registration impractical for a significant number of small to medium-sized businesses. For those businesses, an understanding of how to assert common law trademark rights is recommended.
Common law trademark rights exist by operation of law, without any formal application process, as soon as continuous use of a mark in commerce is established. The following four factors can be used to show that use of a mark is sufficient to warrant common law trademark protection: (1) sales volume of products and services advertised under the mark, (2) growth trends related to marketing efforts involving the mark, (3) the number of buyers in ratio to potential customers in the market, and (4) the amount of advertising conducted utilizing the mark.
Unlike federally registered rights, common law trademark rights are limited to the geographic area in which the mark is actually being used. But because the market share for small to medium-sized businesses is often similarly limited, the geographic restrictions associated with common law marks are often of minimal significance.
If you would like more information regarding trademark protections that are available to your business outside of federal registration, give us a call at (248) 477-6300. We are happy to help!
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