TRADEMARK LAW 101 Part 2- TM BASICS FOR BUSINESS OWNERS
Part 2 of 6
WHAT ARE TRADEMARK RIGHTS?
Trademark rights can come from two sources; common law trademark rights and statutory trademark rights obtained through registration of a trademark.
What are “common law” trademark rights?
The use of a trademark in commerce gives the owner of the trademark priority to continue to use that mark in association with the goods or services within the geographic region that the trademark has customarily been used. The rights stemming from the use of a mark are referred to as “common law” rights.
Common law rights in a trademark are difficult and costly to enforce against another use of the same or similar trademark. There are many hurdles in proving the loss of profits caused by another’s use of the same trademark. As such, common law rights on their own are not much of a deterrent to stop others from using the same or similar branding.
Registration of a trademark provides the trademark owner with meaningful statutory protection against others using similar branding as yours.
What are trademark registration rights?
A trademark registered in a federal trademark office, such as the Canadian Intellectual Property Office (CIPO) or the United States Patent and Trademark Office (USPTO), is given trademark rights beyond the common law rights, including the right to the exclusive use of the trademark throughout the entire country where it is registered ( not limited to the geographic area where sales have been made in the past).
This benefit gives the registered trademark owner the option to expand their market territory as well as related product lines or service offerings without worry of violating another business’ trademark rights.
The filing date of your trademark application establishes priority to your trademark, even if you have not begun to use your trademark. Therefore, the first to file for registration of a mark gains a considerable advantage in securing their rights to that trademark (and any similar marks). For this reason, it is critical to start the registration process very early in your marketing plan.
Registering a trademark early in a marketing campaign secures the exclusive right to use that brand to the exclusion of competitors, as well as other statutory rights gained through trademark registration which include the following:
§ Nationwide protection to use your mark at the exclusion of other similar marks (even without prior use in every region of the country)
§ The right to stop competitors from using the same or confusingly similar marks
§ Significant statutory damages can be awarded by a court against violators without the trademark owner having to prove actual financial damage or loss of profits
§ The right to use the circle R symbol
§ Deters would be infringers from using the same or similar branding to the registered trademark
§ Gives the trademark owner the ability to expand its business throughout the country of registration, as well as the expansion of product lines / service offerings associated with the registered trademark without fear of infringing on another business’ trademark rights
§ Assistance of Customs and Border Protection in enforcing your trademark rights against the importation of counterfeit goods.
For more information about trademark basics check out our other posts or contact us for a branding strategy consultation.
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