Generally, common law rights are derived from custom and judicial precedent. Common law trademark rights are those rights that a business owner has from using a trademark, brand name, slogan or logo without having obtained a state or federal trademark registration of the mark. The rights come with using the mark in commerce. Registration is not a requirement, although it is highly recommended. Registration of a mark gives a business stronger protection and additional rights than common law protection does.

Common law protection may only extend to your geographical area of business, while federal registration with the U.S. Patent & Trademark Office protects you in all 50 states. Enforcement of your rights is more difficult without registration, including obtaining damages for infringement. Federal registration allows you to obtain statutory damages, meaning set damages by reason of the infringement, and to collect your attorneys’ fees.