Common Law Marks and Rights

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.