Common law rights
Rights you get from using a name, without registering it.
In the US, using a mark in commerce creates rights even without registration - but only in the geographic area where you actually trade. Registration converts that into nationwide rights. Common law rights matter in clearance because an unregistered user can still block you.
Why it matters to your application
Using a name in business creates real rights without registering anything - but only where you actually trade. That geography is the catch: common law rights protect the area you have earned, while a registration protects the whole country, including the places you have not reached yet.
In order
- Work out where you genuinely trade and can prove it. That is roughly the extent of your rights.
- Keep dated evidence of first use: invoices, listings, advertising.
- Understand the exposure: someone else can register nationally and squeeze you back to your existing area.
- If the brand matters beyond your current territory, register. That is the only way the rights travel ahead of you.
How this plays out
A regional business trades under a name for eight years. Someone else registers it federally. The original user keeps the right to carry on in the area they already served - and is frozen there, while the registrant expands everywhere else.
About common law rights
Do I own a trademark just by using it?
You acquire common law rights in the area where you actually trade. They are real but geographically limited and harder to enforce than a registration.
Can someone register a name I have been using for years?
Yes, and it happens. Your prior use may let you continue in your existing area, but you can be shut out of expanding beyond it.
Why does a register search miss common law users?
Because they were never on the register. That is why a clearance search looks at domains, marketplaces, directories and social handles as well.
General information about USPTO procedure, not legal advice about your situation. Always confirm the status and deadlines on your own application in USPTO TSDR.
Others you will meet at this stage
Dead mark
A record that is abandoned, cancelled or expired.
Choosing a nameDescriptive mark
A name that describes what you sell. Hard to register.
Choosing a nameDistinctiveness
How strongly a name works as a brand rather than a description.
Choosing a nameGeneric term
The common name for the thing itself. Never registrable.
Choosing a name