Tips on How to Protect Your Common Law Trademark
Many start-ups are interested in protecting their brands, but initially may not have the resources to file trademark registrations with U.S. Patent and Trademark Office (USPTO). Trademarks do not have to be registered with the USPTO in order for the trademark to be protected by the owner. You may have common law trademark rights – at least with respect to the geographical area you are operating in – if you are using your mark in connection with your product or service and providing it in commerce.
However, it’s important that you know how to use it properly in order to be protected as a common law trademark. The following are tips on how to use your trademark:
- Although you cannot use the circle R symbol ® until the trademark is registered with the USPTO, you can use a TM or SM superscript to indicate that you are claiming common law rights in your mark. The TM or SM superscript can be a great deterrent to other individuals or entities who are considering the same or similar mark for their product or services.
- When you are using a trademark in your advertising material or on your website, consider using the TM or SM superscript in the upper right hand corner.
- Try to use the TM or SM superscript in the first or most prominent use of the mark on the web page or marketing material. In other words, the first time the trademark appears in the marketing material, advertisement or web page. No need to use it every time, but the most prominent usage will put viewers or readers on notice that you are claiming common law rights to that mark.
- Try to highlight your trademark in some way to set it apart from the rest of your advertising language. You do not need to capitalize the trademark, but it is a good idea to highlight it in some way to pull it out from general text, either through bold, underline or italics or a different font or stylization. You can also use it consistently on each webpage in a prominent location, such as the header or footer, in a different size than your other web content.
- Make sure that you only use the trademark as an adjective, not as a noun or verb, or as a plural or possessive. A common mistake many make is using a trademark as a noun or a verb.
Of course, you can always file a trademark application with the USPTO and obtain some wonderful benefits, and you should definitely consider this option. In the meantime, these tips should give you a start on protecting your brand without one!
Please contact my office at firstname.lastname@example.org or 530-802-0640 if you have questions about trademarks and how to protect or enforce them.
Virginia Ryan provides business law services to clients in Northern California, including Auburn, Grass Valley, Nevada City and Truckee.