Does common law trademark protection exist?
Yes, common law trademark protection does exist in New York. Common law trademark protection is the protection of a trademark that is acquired by using it without registering it with the government. This type of trademark is acquired through use over a period of time, as opposed to registering the trademark with the U.S. Patent and Trademark Office (USPTO). Common law trademark protection is based on a concept known as the “first in use” principle, which states that the first person or company to use a trademark in connection with goods or services will acquire the trademark. That is, if Company A creates a trademark and starts using it before Company B, Company A will receive the exclusive rights to the trademark even if Company B later obtains a USPTO registration for the same trademark. In New York, common law trademark protection can be enforced through legal action known as a trademark infringement lawsuit. Such a lawsuit generally requires the trademark holder to prove that they were the first to use the trademark and that the infringing party is using the trademark without authorization. Generally, the trademark holder must also demonstrate that there is a likelihood of confusion among customers or potential customers due to the infringement. In conclusion, common law trademark protection does exist in New York and is enforced through legal action. Those who wish to protect their trademarks may do so by establishing their rights through use, before registering the trademark with the USPTO.
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