4 Types of Trademarks

When people talk about trademarks, there are actually four different kinds: (1) common law, (2) state, (3) federal, and (4) International (in no particular order).

1. Common Law Trademarks

A common law trademark is also known as an unregistered trademark. You get it by just using your mark in commerce first (ie: before anyone else). It is FREE to obtain a common law trademark. However, A common law trademark is limited to the geographic location where you use it. It is also the most challenging type of trademark to enforce, but it can be enforced.

You should also keep in mind that there is no database that keeps track of who is using any particular unregistered trademark. Since people may not know you are using a trademark, it means they are more likely to infringe on your exclusive right to use it, even if unintentionally. You can let people know you are claiming a mark by using the (TM) symbol. For example, if I am using the trademark Dog Breath—a new line of mints for people who have terrible breath, I would notify people I’m claiming a common law trademark right to Dog Breath by writing it this way: Dog BreathTM breath mints. Still, unless someone happens to come across this, they are not likely to know I’m claiming this trademark because there’s no place to look.

2. Trademarks Filed with a State

You can file a trademark in a state. This typically requires filing a trademark application on a form provided by the Secretary of State. Some states will have the registration run at the county or city level. Filing fees are around $100-$200, from what I’ve seen.

State law trademarks will be governed by, of course, state law. You will need to review the statutes governing trademarks in your state to understand the benefits and rights provided by state trademark registration.

3. Federal Trademarks

Federal registration provides you a right to exclusive use of your trademark in the U.S. (although it can be challenged) and provides you with additional protections and remedies in the event of an infringement. Depending on the method of filing, the filing fee is between $225 and $400 for each class in which you are registering. It can take more than 6 months to get the results of your application.

It’s up to you to understand what trademark rights are at play when you are operating a business. You have to be the one to ensure that you are not infringing on any common law, state, or federal trademark rights. If you claim a trademark, it is up to you to choose how you want to secure that right (whether by common law, state, or federal registration) and how to enforce it.

4. International Trademarks

Each country has its own requirement and laws related to trademarks and trademark rights within them. Obtaining a common law, state, or federal trademark in the U.S. does not give you rights in another country. That being said, registering your trademark with the USPTO may make it easier for you to obtain trademark rights in another country as the result of the Trademark Law Treaty.

Let’s Get in Touch

If you would like to ask a question about trademarks, copyrights, or online business, shoot me an email (thelawofthebrand@gmail.com) or a text (702-291-1799) or schedule a meeting.

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Leland Faux
Attorney Leland Faux blogs about trademark, copyright, and online business issues at Law of the Brand. You can submit a question by email to thelawofthebrand@gmail.com.

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