Question

Are patents or trademarks protected by common law? Do they require registration for enforcement?

Answer 1

Intellectual property can be divided into 4 major classes that are termed copyrights, patents, trademarks, and trade secrets. There are different types of laws that protect these IPs. Branding is covered under trademark, creative work is covered under copyrights and inventions are covered under patents.

Common law can be defined as the commonly followed unwritten laws which are not officially codified but these are established by the rulings of earlier court judgments.

As in the case of a trademark, the business can have the right over a certain trademark just by using it for the very first time. However, in order to really safeguard the trademark, it is always better to get the trademark to be registered with the U.S. Patent and Trademark Office, or USPTO.

The business which is the first to use a certain trademark will have the common law trademark rights and these rights are limited only up to a certain geographic area.

The first user of the trademark may have the common law rights to protect the trademark in a certain geographic area despite any other business having the same trademark as a registered trademark in all over the country. It is quite difficult to enforce the common law trademark rights as it lacks the public records or the time from when a certain trademark is in use for the first time

There is some limited geographic protection provided by the common law to the different trademark but if the business wants to have full protection, it is important to register the trademark with USPTO for complete protection.

On the other hand, when we talk about patents, there is no protection under common law. If a person wants to protect the patents, then he must get his patents registered with USPTO

So in short, trademarks are protected under common law with a certain geographic location and patents do not have any protection under common law. For greater protection, it is always better to have trademarks registered with USPTO while in case of a patent, it is must to get the registration with USPTO to protect the patents.

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