If you have a brand or product, a trademark can stop others from using the logo, slogan, or another mark that identifies your creation. However, since there are different types of trademarks, it can be confusing to know which one you need.
On the one hand, you’re going to need protection, but on the other, your brand may not need the protection of a registered trademark. Perhaps you’re wondering whether you need a common law trademark or a registered trademark. Knowing the difference between them can help you make the right choice.
Key Differences Between Registered and Common Law Trademarks
In order to have a registered trademark, you must register with the U.S. Patent & Trademark Office (USPTO). The process is an arduous one that requires filling out a complicated application.
Common law trademarks do not need this registration, plus they are free. You can also get them by simply using a mark in commerce. Hence, they are called common law trademarks as specific statutes aren’t needed to govern them.
The one thing these trademarks both have in common is that they give the owner the right to use a mark in commerce and prevent others from stealing it. Protections are great because you won’t have to worry about someone else profiting from your creation. However, it may be worth it to register your trademark to have greater coverage and peace of mind.
Which Trademark Gives the Best Level of Protection?
While it is much easier to obtain a common law trademark, you will not get the same level of protection as you would with a registered trademark. Common law trademarks only give you legal protection in the geographic areas where your mark is used and any areas where your business would naturally expand. It’s also important to note that these protections are only applicable if you use the mark in those geographic areas before anyone else uses them.
When you use a registered trademark, it covers your particular mark nationwide. Once you become a part of the Federal Register, no one else can use that mark. The only exception is with pre-existing businesses; they can continue using this mark in the geographic areas where they were already using it when you filed the application.
Advantages of a Registered Trademark Compared to Common Law
Protecting your brand should be important to you, which is why you will not want to make this decision lightly. There are other distinctive advantages to applying for a registered trademark compared to common law trademarks.
Among them, the federal registration makes it much easier for you to sue in federal court when someone infringes on your trademark. You should also know that once your trademark has been registered federally and used for five years, it is labeled as incontestable. In other words, you have conclusive evidence of your right to use the mark, which severely limits the kind of defense an infringer could use.
Another advantage of registering your trademark is that it may increase the number of options you have when suing for infringement. You would be permitted to go after the infringer’s profits and seek statutory damages. You could also request punitive damages. Generally speaking, none of these options are usually available if you have common law trademarks that are violated.
Instead of getting a “™” for a common law trademark, federally registering permits you to use the “®” symbol, giving it more legitimacy.
Which Type of Trademark Should You Get?
While you will get more protections and advantages by registering your trademark, there are a few things you must think about first. A registered trademark comes with fees for applying and registering.
The process is also very complicated. Even a small error on your application could set you back. Many businesses hire trademark legal counsel to help them get through this process without encountering any roadblocks.
If you have a very small business that is limited to a small geographic area and widespread brand recognition isn’t necessary, you may not need to register your trademark. However, if you plan on expanding nationally, it may be worth the investment into this registration.
Larger businesses shouldn’t skip registering a trademark. The same is true for any business model that will depend on slogans, branding, and name recognition. If you’re still not sure, it can’t hurt to have this discussion with a trademark attorney who can steer you in the right direction for the best interests of your business.
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