Trademark Rights Through Use Alone
Trademark rights arise through the use of a mark in connection with an individual or business’ goods, products or services. These rights are commonly referred to as “common law rights.” Common law trademark rights are generally limited to the geographic area in which the trademark or service mark is used and, in certain circumstances, a zone of natural expansion into which the owner or business is likely to expand its use. Questions regarding the nature and amount of use that must be made of a trademark to establish common law rights are common. Even a small amount of use in commerce may sustain trademark rights if followed by continuous commercial use. However, every situation is different and an analysis of how much use is sufficient to establish common law rights will be fact specific.
The concept of trademark priority is important in trademark law because the prior user or federal trademark registrant of a trademark may have the right to exclude a newcomer from using the same or confusingly similar marks in the marketplace. A trademark owner’s priority date is easily determined when based on the filing of a federal actual use application or intent-to-use application. It is very important to make sure that the “first use” and “use in commerce” dates are properly and truthfully made in order for a trademark owner to avoid a trademark opposition proceeding or a trademark cancellation proceeding.