Common Law Rights

Your implicit rights in any name you use

 

By using a name, any name, for your company, product or services, you implicitly earn some common law rights in that name. If you never claim it as a trademark, and never register is as a trademark, you may still be able to keep rights to it by claiming common law privileges.

If two companies later fight over a name, in which both only have common law rights, then the one who can prove first usage is usually awarded the full rights. But there is very little black and white agreement here, and often the company with the most legal money wins instead. However, on a more upbeat note, names and name rights can be sold and bartered. So some companies agree to voluntarily change their name in exchange for some settlement arrangement, before these matters go to court. Or they may simply agree on staying in different market spaces – but this can have serious ramifications downstream as Apple and others have found out.

Relying on common law rights is not advised for anyone, except when you have been caught short sighted because of prior management dealings, and have nothing else to hang your claims on.

You do not want to get one of those dreaded “Cease and Desist” letters because your name is “confusingly similar” – even though it is slightly different! So perhaps you should start to make some specific Trademark claims.

 

<– Back to Name and TM ®esources

Naming Articles

New brand insider articles from an experienced marketing team. Learn all the basics of naming, branding and trademark registration from these free reports:

August 2016: How to select a naming agency.

July 2016: How to get International Trademark protection.

March 2016: You received a cease and desist letter. Now what?

May 2015: How can one product line have many trademarks?

Jul 2014: What roles do copyrights and patents play in protecting names?

Jan 2014: Predictions for 2014 and Free Offers.

Our naming gurus follow and comment on current naming practices worldwide.


See the latest Name Critic ratings for names like Skype, Pinterest, Etsy, etc.


Follow @namiac on Twitter

Linked In

Share this page on LinkedIn:


See his industry naming commentary (where he takes a critical look at names) via the blog on this site