A brand owner should understand what common law rights are and
how they can interact with registered trademarks.
The trademark registration system co-exists with common law
trademark rights. Common law rights are acquired through actual use
of the common law mark in association with goods or services. As a
common law trademark becomes known and goodwill is associated with
it, the owner of the mark will be able to assert claims against
others who use confusing trademarks in the specific region or area
where the common law trademark owner has built up goodwill. Common
law trademark rights may be helpful on a case-by-case basis or may
be impediments to overcome in other cases.
If a brand owner does not own a trademark registration it may
still be possible to assert rights relating to common law trademark
by bringing an action for passing off. However, it can be more
difficult to succeed with such an action since in determining
whether passing off has occurred the court
