Trademarks, Copyrights and Common Law: Possession is Only Nine-Tenths of the Law

There is a maxim that tells us, “Possession is 9/10’s of the law.” However, that doesn’t mean you can ignore the remaining 1/10. In fact, doing so when it comes to your trademarks and copyrights could cause irreparable harm to you and your business!

For this concept to make sense, you need to understand how possession — common law — and legal rights coexist in the marketplace.

Possession, Ownership, and Your Legal Rights

If I decide to sell you my car, you pay me the agreed upon price, and I deliver the keys to you, you are now in possession of my car and have become its new owner. However, if you don’t do the paper work to reflect the transaction on the title of the car, it will be very difficult for you to prove that you own that car in the future.

For example, you’ll need proof of ownership to finance the car, trade it in to a dealership, or sell it privately. The title confirms that you are the legal owner of the car that came into your possession once the keys were delivered.

Transferring ownership on paper isn’t enough if you don’t have physical possession; and physical possession isn’t enough if you want to prove ownership to a third party.

Possession and Ownership of Trademarks and Copyrights

Trademarks and copyrights function much the same way as possession and ownership worked in the car example.

Trademark rights arise from your commercial use of a particular mark in a geographic territory. This is your “possession.” Federal registration of the mark proves your ownership. This is the “title work.”

Similarly, copyright rights arise from authoring a creative work and fixing it in a tangible medium. The moment of creation is the “possession.” Federal registration of the copyright proves your ownership (the “title work”) and gives you access to the courts to enforce your rights.

Common Law and Why You Need to Register Your Trademarks and Copyrights

In a post I saw on Twitter recently, a user erroneously said that as you learn common law, you realize many of the things you’re paying for are already protected: copyright, trademarks, etc. This is where people get confused about possession, ownership, and your legal rights. Remember, possession is just 9/10s of the law. Common law can help you, but it won’t seal the deal if someone infringes on your copyrights or trademarks.

Take a look at the four things you’ll miss out on if you don’t register your trademarks and copyrights and only rely on common law protection.

4 Things You’ll Lose if You Don’t Register Your Trademarks:

1. You can’t use the federal trademark registration symbol which puts the public on notice of your legal rights to the mark. Without constructive notice, you might not be able to sue or collect fines and damages if someone infringes on your mark regardless of common law possession.

2. You might not be able to expand the geographic scope of commercial use of your mark to the entire country. In other words, your regional rights to the mark might not become national rights. That means someone else could use your mark in different states regardless of common law possession.

3. You won’t have proof of ownership of a valid mark. Just because you think your mark is a valid, distinctive, protectable trademark doesn’t necessarily mean that the law recognizes it as such. In other words, common law won’t help you protect a mark that couldn’t be legally trademarked to begin with. You could get limited protection of your mark or no protection at all!

4. You’ll have a more limited ability to block importation of infringing goods and a narrower array of remedies in an infringement action.

4 Things You’ll Lose if You Don’t Register Your Copyrights:

1. You can’t enforce your rights in the courts. That’s because you can only sue for infringement if the copyright has been registered. Sending someone a cease and desist letter demanding that they stop using your unregistered copyrights is often an empty threat. In fact, it’s a lot more bark than bite, and educated people are far less likely to take you seriously.

2. You can’t collect statutory damages in an infringement lawsuit if the application isn’t filed in a timely manner. In other words, you can’t collect money damages unless you can prove financial loss.

3. You won’t have proof of ownership of a valid copyright. Without proof of ownership, it will be much more difficult to license or assign your rights to your original work in the future.

4. You’ll have a more limited ability to block importation of infringing goods and a narrower array of remedies in an infringement action.

The Takeaway

Money, opportunity, legal rights, and protection are just some of the things you’ll lose if you don’t register your trademarks and copyrights. Bottom-line, common law doesn’t give you the full protection you need to protect your valuable intellectual property, so it’s critical that you protect it and your business by registering your trademarks and copyrights.