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There are a number of intellectual property myths that attorneys
hear over and over again. Periodically, we'll feature
some of these myths and expose the reality.
Myth: My company has a trademark registration so our brand name
doesn't infringe on anyone else's rights.
Reality: When the U.S. Patent and Trademark Office
examines a trademark application, a trademark examiner reviews
federally trademark registrations to determine if there are any
registrations that might be confusingly similar with the
application's trademark. This has resulted in some people
thinking that if they have obtained a trademark registration they
have been given some level of assurance that their trademark
doesn't infringe anyone else's trademark.
However, the U.S.P.T.O search does not look at common law, i.e.
unregistered, trademarks. In the United States, trademark
rights are acquired by use – not registration.
Therefore, unregistered trademarks can have priority over
registered trademarks if they were used first. This leaves
open the possibility that a third party who was using a trademark
first may have priority over someone with a federal trademark
registration.
For this reason, it is a best practice to consult with a
trademark attorney about the benefits of a comprehensive trademark
search and an analysis that would include both registered and
unregistered trademark uses.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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2013 IP Developments (Video Content)
