Unregistered Trademark Rights at Common Law: Priority Geography and the Tea Rose Rectanus Doctrine

63 questions on unregistered trademark rights at common law, answered and cited by the UpLaw editorial team.

• Can a business with no filings at all stop a copycat?
• Can an unregistered mark be attacked as generic?
• Can an unregistered owner send a cease-and-desist letter?
• Can an unregistered trademark owner sue in federal court?
• Can a trademark be "loved to death"?
• Can common law rights survive the cancellation of a federal registration?
• Can free distribution of a product establish trademark rights?
• Can two unrelated businesses own the same trademark at the same time?
• Did the Lanham Act abolish common law trademark rights?
• Do common law rights extend beyond the exact area of sales?
• Does an online business have local or national trademark rights?
• Does an unregistered owner have to prove secondary meaning?
• Does a token sale create trademark rights?
• Does failing to police a trademark destroy it?
• Does registration make an unregistered senior user's rights disappear?
• How do courts treat a mark that has not yet acquired secondary meaning?
• How does an unregistered owner's position in court compare to a registrant's?
• How does naked licensing destroy a trademark?
• How does the burden of persuasion work in an abandonment challenge?
• How does the U.S. first-to-use system differ from first-to-file?
• How do the customs of a particular trade affect what counts as use?
• How is a common law trademark abandoned through nonuse?
• How is a service mark different from a trademark?
• How should a company treat foreign markets differently from domestic ones?
• Is being unregistered a good place to start or a good place to stay?
• Is it accurate to say an unregistered mark is unprotected?
• What activates a common law trademark right?
• What cases show that token use fails to create trademark rights?
• What did Hanover Star Milling and United Drug v. Rectanus establish?
• What does "common law" mean in trademark law?
• What does it mean that trademark disputes are usually about geography?
• What does state law add for an unregistered trademark owner?
• What does the two-brewer puzzle teach about trademark ownership?
• What evidence must an unregistered owner assemble to prove its rights?
• What four mechanisms cause the loss of unregistered trademark rights?
• What happens if a common law owner delays enforcement?
• What is analogous use and can it establish priority?
• What is an assignment in gross?
• What is passing off and why does it matter to modern trademark law?
• What is the central bargain of unregistered trademark rights?
• What is the cheapest insurance a common law trademark owner can buy?
• What is the hidden cost of skipping trademark registration?
• What is the practical checklist for an unregistered trademark owner?
• What is the relationship between use and registration in American trademark law?
• What is trademark squatting and why does it threaten U.S. companies abroad?
• What makes common law trademark rights "free and automatic"?
• What must an unregistered owner prove to win an infringement claim?
• What role does goodwill play in unregistered trademark rights?
• What single sentence should guide every unregistered trademark priority fight?
• What symbol may an unregistered trademark owner use?
• When do the limits of unregistered rights bite hardest?
• Which marks can support common law rights immediately?
• Why can't you create a trademark just by thinking of it?
• Why do archived web pages need authentication in a trademark case?
• Why does a 1918 case about a patent medicine still decide trademark disputes?
• Why does investor diligence care about trademark registration?
• Why do patent and copyright lawyers find trademark priority counterintuitive?
• Why do some businesses reasonably stay unregistered?
• Why is proving continuous use as important as proving first use?
• Why is state trademark registration not a substitute for federal?
• Why is the trademark right described as a relationship rather than a thing?
• Why is the Wayback Machine a courtroom regular in trademark cases?
• Why should a brand owner document its earliest public-facing use?