Federal, State and Common-Law Rights
A single mark can carry three different legal rights at the same time: common-law rights from using it, a state registration, and a federal registration. They overlap rather than replace one another, and the difference shows up the moment you try to stop someone outside your own city.
Three layers, one mark
Common-law rights come from actually using the mark in a trading area. A state registration comes from filing with a state, usually with proof of use or a business license. A federal registration comes from the USPTO and reaches the entire country. Most operating businesses hold the first one without realizing it, and the strategic question is usually whether to add the other two.
How the three compare
| Feature | Common law | State registration | Federal registration |
|---|---|---|---|
| How it arises | First use of the mark in commerce in a geographic area | Filing with the state, usually with proof of use or of a business license | Filing with the USPTO and completing examination, publication and registration |
| Geographic scope | Only the trading area you actually serve, plus a natural zone of expansion you can prove | The state | All 50 states, the District of Columbia and US territories |
| Notice to others | None automatic. You must prove the other side knew or should have known of your mark. | Constructive notice within the state | Nationwide constructive notice from the registration date |
| Where you enforce it | State court, or federal court if you have a related claim | State court | Federal court, plus USPTO proceedings before the TTAB |
| What it costs in 2025 | $0, but you carry the entire burden of proving reputation and use | Typically $50 to $150 per class, per state | $350 per class to apply, $325 per class to renew |
| Term | As long as you keep using the mark; it dies when you stop | Usually 5 to 10 years, renewable | 10 years per term, renewable, with a Section 8 declaration due between years 5 and 6 |
| Remedies | Injunctions, and limited damages that vary by state | State statutory remedies, which vary widely | Injunctions, profits, costs, and statutory damages in counterfeiting cases |
Common-law rights stop at the edge of your trading area. A bakery that has used a name in Portland since 2011 generally cannot stop a bakery in Austin that adopted the same name in 2014 without ever hearing of it. The Portland shop simply was not there yet, and without a federal filing it has no claim to the rest of the country.
What federal registration adds on top
- Nationwide priority against anyone who begins using a confusingly similar mark after your filing date, even in markets you have not entered yet.
- Constructive notice, which removes the innocent-adoption defense that otherwise blunts a common-law claim.
- A direct route into federal court without bolting the trademark claim onto something else.
- The ability to record the registration with customs so counterfeit shipments can be seized at the border.
- A certificate that marketplace brand registries, domain dispute panels and social platforms accept without argument.
Where a state registration still earns its fee
A state registration makes sense when your business is genuinely local and a federal application would fail or be wasteful: a single-location restaurant, a regional service business, or a descriptive mark that has built recognition only inside one state. It costs a fraction of the federal filing, it gives you something concrete to show a local competitor or a sheriff, and it does not require you to prove use in commerce that Congress regulates.
Priority is what the fight is actually about
Between two users of the same mark, whoever used it first in a given territory usually wins there, which is why a six-month head start matters. Federal registration lets you jump that line nationwide as of your filing date, so a founder who files early can beat a much larger company that started using the mark later. It is also the reason a clearance search before you commit to a name is not optional: the cheapest conflict to resolve is the one you find before you print anything.
Frequently asked questions
Do I have any trademark rights if I never register anything?
Yes, but they are narrow. Use creates common-law rights in your actual trading area, and you can usually stop a nearby competitor who adopted the name after you. Those rights are hard to prove and stop at your geographic boundary.
Does a state registration block me from filing federally?
No. They coexist, and many businesses hold both. The state registration does not give you nationwide priority, and the federal registration does not cancel it.
If someone else used the mark first, is my federal registration worthless?
Not worthless, but vulnerable. A prior user with common-law rights can usually keep using the mark inside their own territory and can petition to cancel your registration if they can prove earlier use and likely confusion. This is exactly what a pre-filing search is meant to surface.
How do I prove when my use started?
Keep dated invoices, shipping records, bank deposit records, advertising with visible dates, and archived screenshots of live ordering pages. Your claimed date of first use is a sworn statement, so it needs documents behind it.
Can I lose common-law rights by stopping use?
Yes. Trademark rights depend on continued use. Non-use for roughly three consecutive years raises a presumption of abandonment, and filings that rely on that use become indefensible.
More in Trademark Basics
Trademark Fundamentals
What counts as a trademark, and what rights registration actually gives you.
TM, SM, and ® Symbols
When you can use each symbol, and the legal risk of using ® too early.
Use in Commerce vs. Intent-to-Use
The two filing bases explained (Section 1(a) vs 1(b)), and which one fits your situation.
Applicant Eligibility
Who can file, and what counts as a valid filing basis. Foreign filers need a U.S. attorney.