What is a Common Law Trade Name?

In the United States, a business may protect its name by registering it with the United States Patent and Trademark Office (USPTO). This will prevent every other business in the U.S. from using that particular name. However, there are laws that state that if another business first used that name in commerce, the business which used it first may have the exclusive rights to that name.

According to these common law rights, the first one to use a trade name may acquire exclusive protectable rights in the geographic area in which the first user's trademark is well known. These rights may also apply in areas of natural or probable expansion. Even if the same (or a similar) trademark is submitted in the federal registration process, the first user's rights may take precedent over the federal registration.

Therefore, just because you conduct a thorough search before you begin the registration process, does not mean that you will be guaranteed the rights of your registered name. However, it is still best to conduct a thorough search of existing names to avoid any foreseeable conflicts beforehand.

If your trade name creates a conflict due to this common law, it may lead to a legal battle. If so, a New York business lawyer may be able to help you fight your case.

If you plan on starting a franchise in New York, you need to protect your business's name. To do so, you can register the name with the USPTO. To learn more about trade names, please visit our article library.  

How a New York Business Lawyer Can Help

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