Guide
Common law trademark rights: what an unregistered mark lets you do against a copycat
Written September 2, 2026 by Josh Pigford
A common law trademark is the right you get from using a brand name on goods you sell. You file nothing and you pay nothing. The right is real, and it is limited to the places where you can prove you traded. Most marketplace trademark forms ask for a registration number. The copyright claim in your product photographs does not.
So this page decides three things for you. What your unregistered mark can do about a copycat this week, which of the platform forms will take it and which will bounce it, and whether the $350 application is worth filing now rather than later.
The short version
- Rights begin with bona fide sales under the name, not with a filing.
- A descriptive name and the shape of a product start with nothing until buyers connect them to you.
- The right runs as far as your trade reached, and selling online does not change that by itself.
- You can sue, and you can recover money, with no registration at all.
- Shopify's trademark form, behind a Shopify login, branches to a common law path. Amazon's and Walmart's do not.
- Your stolen photographs are a separate right that needs no registration anywhere.
- Registration buys a presumption, priority from the filing date, and the doors to the brand programs.
Where the right comes from
Read the definition in the statute and notice what is missing from it. 15 U.S.C. 1127 defines a trademark as "any word, name, symbol, or device" used by a person "to identify and distinguish his or her goods" and "to indicate the source of the goods". There is no registration in that sentence. The Lanham Act describes a thing that exists in the market, and registration is a separate machine bolted on later.
What creates the right is use in commerce, and the same section defines that narrowly. Use in commerce is "bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark", and for goods it means the mark is placed on the goods, their containers, their tags or their labels, and the goods are "sold or transported in commerce". Commerce means "all commerce which may lawfully be regulated by Congress". A launch page with an email capture is not use in commerce. A hundred orders shipped under the name is.
The second condition is the one that quietly disqualifies a lot of brands: the name has to be capable of pointing at you. A coined or arbitrary name is distinctive on day one. A descriptive name is not, and it holds nothing until it acquires what the law calls secondary meaning, the association in buyers' minds between the words and your business. 15 U.S.C. 1052(f) is the registration-side version of the same idea: the Director may accept five years of "substantially exclusive and continuous use" as prima facie evidence that the association has formed. What builds that association is ordinary business evidence, the same list a UDRP panel reads, which is advertising, sales volume, unsolicited press and consumer surveys. The five-year clock runs from your first use whether or not you ever file, so a descriptive name gets stronger by being sold rather than by being registered.
The Supreme Court has drawn the line twice, in the two cases worth knowing. Two Pesos v. Taco Cabana, 505 U.S. 763 (1992), says "it is common ground that ยง 43(a) protects qualifying unregistered trademarks" and holds that inherently distinctive trade dress is protectable with no showing of secondary meaning. Wal-Mart v. Samara Bros., 529 U.S. 205 (2000), draws the exception that matters most to a product brand: product design is "distinctive, and therefore protectible, only upon a showing of secondary meaning". The shape of your bottle is never inherently distinctive, no matter how original it looks to you. If the shape is the thing worth protecting and you cannot yet show secondary meaning, the route that asks for none is a design patent, covered in utility patent and design patent, side by side. Trade dress examples, with the outcome each one reached covers what that burden looks like in practice, including the non-functionality proof that 15 U.S.C. 1125(a)(3) puts on the plaintiff.
One more distinction to keep straight before the rest of this page. Your product photographs and your descriptions are copyright, a different right that exists on creation and needs no filing to enforce on a platform. Your name and your logo are trademark. Copyright and trademark cover different halves of what a copycat takes, and filing the wrong claim type is the most common way a report gets rejected.
One consequence of a right that needs no filing: nobody can look it up, including you. The USPTO says results in its search database "are limited to federal trademark applications and registrations and do not include the trademarks of other parties who may have trademark rights but no federal registration". A clean search of the register is therefore not a clean name. Searching state registrations, domain records and ordinary marketplace listings is the practical floor before you commit to a name, and none of it is a clearance opinion.
How far an unregistered mark reaches
An unregistered mark reaches as far as your trade actually went, and no further. This is a hundred and ten years old and it has not moved. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916), draws the boundary in one sentence: "But this is not to say that the proprietor of a trademark, good in the markets where it has been employed, can monopolize markets that his trade has never reached, and where the mark signifies not his goods, but those of another." Your name is worth exactly as much as the trade standing behind it, in the places that trade reached.
United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918), says the same thing from the other side. "There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade", which is the Court saying the right attaches to goodwill rather than to the word, and in "separate markets wholly remote the one from the other, the question of prior appropriation is legally insignificant, unless at least it appear that the second adopter has selected the mark with some design inimical to the interests of the first user." Good faith is doing work in that sentence. A copycat who found your name by copying your store is not a remote good-faith adopter, and that is the difference between the fact pattern in the casebooks and the one on your screen.
Congress kept the same boundary when it wrote the registration rules. 15 U.S.C. 1115(b)(5) preserves an earlier user's rights against a registrant, but "only for the area in which such continuous prior use is proved". Territory is the unit the system thinks in.
Which raises the question every DTC founder asks next. You sell to all fifty states from one warehouse, so is your market the country? Be careful here, because this is where most pages on this subject overreach. Selling online does not automatically give you rights everywhere. The USPTO's own guidance ties enforcement to the areas of use: "You may only be able to enforce those rights in the specific areas in the United States where you use the trademark if the use covers less than the entire country." What courts weigh is how far your sales and your advertising reached, which is a question of evidence rather than of technology. The checklist is below, under the evidence to keep.
One more claim sits beside the federal one. Every state has its own unfair competition law, it needs no registration either, and it is usually pleaded alongside a section 43(a) claim rather than instead of it.
What you can do about a copycat this week with no registration
Three rails are open to you today, and they are open in a specific order, because they are not equally hard. The photographs are the easiest thing you own to enforce, the name is the hardest, and the platform form sits in between and depends on which vendor built it.
Platform rows read September 2, 2026 on each vendor's own form or policy page. Shopify's report form sits behind a Shopify login, and its published policy page lists only a registration number. Knockoff · September 2026.
| Step | What it costs | What it gets you |
|---|---|---|
| Copyright notice on your photographs | No filing fee | The listing or the page comes down if the platform accepts the notice. Nothing to register first. |
| Section 43(a) demand letter | No filing fee, and nothing to pay if you write it yourself | Pressure, not an order. The thing standing behind it is a federal suit that runs into five and six figures. |
| Platform trademark report | No filing fee | Of the forms we could read, Shopify's is the one that takes an unregistered mark. |
| UDRP complaint over a domain name | $1,500 to WIPO for one to five domain names before a single panelist | The panel can order the domain name transferred to you or cancelled. It reaches the domain and nothing else. |
| United States trademark application | $350 per class | A filing date, a pending application Amazon Brand Registry will accept, and, if it issues, everything in the table below. |
Start with the photographs, because nothing gates them
If the copycat lifted your product images, you have a copyright claim that exists on creation and needs no registration to send a notice. Every platform copyright form we could read asks for the URLs and identification of the work, not for a registration number. Amazon's own staff have said a copyright report does not need "a copyright registration number or even a description of the work". Shopify's copyright form wants the specific product URLs, and "A general shop link will not be accepted." That is the fastest removal a brand with no trademark filing can get. The notice and the counter notice, with the statutory elements marked covers what has to be in it, and the takedown notice generator fills the blanks in.
What you have to prove
Three things, in this order. That you own a valid mark, which for a coined or arbitrary name is the easy part and for a descriptive one means secondary meaning. That you used it first in the area the dispute is about. And that the copycat's use is likely to confuse buyers, which is the element courts spend their time on.
Confusion is decided on a list of factors rather than a single test, and two lists dominate. Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), names "the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant's good faith in adopting its own mark, the quality of defendant's product, and the sophistication of the buyers". The court adds that the catalogue "does not exhaust the possibilities". AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), lists eight: "strength of the mark", "proximity of the goods", "similarity of the marks", "evidence of actual confusion", "marketing channels used", "type of goods and the degree of care likely to be exercised by the purchaser", "defendant's intent in selecting the mark", and "likelihood of expansion of the product lines".
Read those lists as a copycat's victim and one factor stands out, because it is the only one you can collect yourself. Actual confusion is evidence you already receive: emails meant for the other store and refund requests for orders you never took. Screenshot every one of them, with the date visible. A copycat who cloned your photographs also hands you the good-faith factor, which is the factor a remote competitor in another city never does.
Then the demand letter, on section 43(a)
For the name itself, the federal claim you already have is 15 U.S.C. 1125(a)(1)(A), which reaches any use likely to cause confusion as to "affiliation, connection, or association" or as to "origin, sponsorship, or approval", brought "by any person who believes that he or she is or is likely to be damaged". No registration element, no filing prerequisite. A letter that says which name you use, when you started using it, where you sell, and what the reader has to stop doing is a real letter, and it is cheap. What a trademark cease and desist letter can and cannot do covers the tone that works and the one that backfires, and the letter generator drafts one. Send it knowing the limit. A letter is pressure, not an order, and the thing standing behind it is a federal lawsuit that runs into five and six figures. Almost nobody in this position files one, which is why the two rails either side of this paragraph matter more than the letter does.
If the letter is ignored, the next moves are not courts. Report the photographs to whichever platform the copycat is selling on, file a UDRP complaint if the copy is trading on a domain name close to yours, and send the same evidence to the store's host and to its payment processor, both of which have their own acceptable-use rules.
Then the platform form, which usually asks for a number you do not have
Set your expectations before you start filling anything in. Every counterfeit lane and every brand program we could open asks for a registration. Two trademark lanes will read an unregistered mark: Shopify's report form, and the UDRP for a domain name. TikTok's published policy has no registration element in it but its form is behind a login and we could not confirm the fields. Meta and Google Ads are unclear. That is the whole verified list, and it is short. Here is what each one asks, read on September 2, 2026 on the vendor's own form or policy page.
| Where | The lane | What it asks for | Unregistered mark |
|---|---|---|---|
| Shopify | Trademark or trade dress notice | The report form sits behind a Shopify login and branches. The registered path asks for a registration number and where it is registered. The common law path asks for a first use date, evidence of that first use, and links to your advertising: "First use date is required for common law trademarks". Shopify adds, "Note: We may require supporting documents to verify your common law trademark rights." Read the published policy page instead and you would never know that branch exists: it lists only a description, the countries of registration, a trademark registration number and the categories covered. The trade dress path asks for a description and a statement that the trade dress is non-functional, with no registration field. | Yes, on the form's common law branch |
| TikTok | Trademark report | The policy defines the wrong by likelihood of confusion with no registration element, and reserves the word registered for its counterfeiting clause: "Counterfeiting is the illegal manufacturing ... under a trademark that is identical to or substantially similar to a registered trademark". The form itself is behind a login and we could not read its fields. | Policy says yes, form not confirmed |
| Amazon | Report Infringement, the public form | Identification of the right plus a registration number, and up to 50 listing URLs or ASINs. An Amazon community manager has said counterfeiting "requires the use of your registered trademark on the product, packaging, or product detail page" (November 10, 2025). | No |
| Amazon | Brand Registry enrolment | "You must have an active, registered trademark or a pending trademark application for your brand name or logo", as a word mark or a design mark containing words, letters or numbers. | No, but a pending application counts |
| Walmart | Brand Portal and the public IP claim form | The public IP claim form puts every field under one banner, "All of the following fields are required.", and selecting trademark reveals a field labelled Trademark number. Submit it empty and the form answers "Trademark number is required". | No |
| Meta | Trademark report form | Asks what is registered, where, and the registration number, one mark per report with a 30-link cap. The form is reachable without a registration and Meta's own text says, "If you don't have access to Brand Rights Protection, you can use this form to report infringements of your trademark". Whether the number field is mandatory we could not confirm. | Not confirmed |
| Google Ads | Trademark complaint | Complaints run against named advertisers by URL, in the countries and industries where owners "have demonstrated trademark rights". No registration number is named on the policy page and the webform is behind a sign-in. | Not confirmed |
| Domain names | UDRP | An unregistered mark qualifies where it is "a distinctive identifier which consumers associate with the complainant's goods and/or services", proved with duration of use, sales, advertising and public recognition. Descriptive terms carry a greater burden and "conclusory allegations ... would not normally suffice". | Yes |
eBay, Etsy and Temu are off the table above because we could not read their claim forms on September 2, 2026. The rows we could read share one pattern. Any lane a platform calls counterfeit is written around a registered mark, in near-identical words at three different companies, and every brand program is gated on a registration, with Amazon alone taking a pending application. A lane a platform calls trademark sometimes reads an unregistered mark, and Shopify is the one that built the branch into the form. A brand with no filing is filing per-item reports, not joining a program, and the copyright rail above is the one that never asks. The three routes for reporting a Shopify store covers the copycat storefront case, including when the operator is anonymous.
One thing the table does not say, because founders assume the opposite. Nothing in Amazon's Brand Registry rules stops you selling under an unregistered name. What is closed to you is the trademark lane and enrolment in Brand Registry, and the copyright lane for your photographs works there the same as anywhere else.
The evidence to keep, starting today
Every route on this page runs on the same short pile of paper. Start it now, because a record made at the time beats one reconstructed later. Our own read of the USPTO files says how badly reconstruction goes: 15.9% of use-based applicants claim a first use on the first of a month, and 3.14% claim exactly January 1, which is somebody remembering rather than looking it up.
- Dated first-sale records, broken out by state.
- Advertising spend by geography.
- Press coverage, with dates.
- Dated screenshots of the copycat, with the date visible in the frame.
- Your own first-use date, written down today rather than recalled in a dispute.
If the copycat already registered
A registration on your name does not erase your rights where you were already trading. 15 U.S.C. 1115(b)(5) preserves an earlier user who adopted the mark without knowledge of the registrant and used it continuously, "only for the area in which such continuous prior use is proved". That is a shield in your own market rather than a way to stop them everywhere.
To take the registration itself down you go to the Trademark Trial and Appeal Board. Within five years of the registration date, 15 U.S.C. 1064(1) lets you petition to cancel on the same likelihood-of-confusion ground an examiner would have used, at $600 per class. After five years that door narrows to the grounds in 1064(3), which are genericness, functionality, abandonment and fraud, and none of those is about who used the name first.
And at the USPTO, if the copycat is filing on your name
The ground you are reaching for is 15 U.S.C. 1052(d), which refuses a mark resembling "a mark or trade name previously used in the United States by another and not abandoned". Your unregistered mark is inside that sentence. Now the part that decides which move is worth making, from the USPTO's own manual. TMEP 1207.03 says that provision "is not applied in ex parte examination because of the practical difficulties with which an examining attorney is faced in locating 'previously used' marks". Nobody at the USPTO is going to find you, and an examiner will not act on your unregistered use on their own.
So the opposition is the real lever. Under 15 U.S.C. 1063(a) it is due "within thirty days after the publication", which means publication in the Official Gazette, the weekly list where the USPTO announces the marks it intends to register. The first 30-day extension is free and granted on written request, later extensions cost money and need good cause, and the filing itself is $600 per class before the Trademark Trial and Appeal Board. The letter of protest under 37 CFR 2.149 is the long shot rather than the plan: it costs $150, it puts "objective evidence relevant to the examination of the application for a ground for refusal" in front of the examining attorney, it has to arrive no later than 30 days after publication, it must establish a prima facie case for refusal if it is filed after publication, and it "does not stay or extend the time for filing a notice of opposition". The evidence an examining attorney can act on in ex parte examination is a federal filing, which is the thing you do not have. A US trademark watch is how you learn the application exists before the 30 days run out.
Common law trademark vs registered trademark: what registration adds
Registration does not create the right. It changes the evidence you walk in with, the priority date you claim from, and the doors that open. Here is the whole trade in one table, with the statute for each row.
| What is at stake | Unregistered | Registered |
|---|---|---|
| Proving the mark is yours | You prove ownership, validity and the dates from your own records every time. | The certificate is "prima facie evidence of the validity of the registered mark ... of the owner's ownership of the mark, and of the owner's exclusive right to use" (15 U.S.C. 1057(b)). |
| Priority outside your market | Only where your trade reached, and you carry the proof. | "Contingent on the registration of a mark", filing is "constructive use of the mark, conferring a right of priority, nationwide in effect" from the filing date, except against anyone who used the mark or filed first (15 U.S.C. 1057(c)). No registration, no priority. |
| Notice to a later adopter | None. A good-faith adopter in another market may keep their own area (15 U.S.C. 1115(b)(5)). | Registration "shall be constructive notice of the registrant's claim of ownership" (15 U.S.C. 1072), which is what makes later adoption not in good faith. |
| Getting harder to attack over time | It never happens. Every dispute reopens the same questions. | After five continuous years plus an affidavit the mark can become incontestable (15 U.S.C. 1065) and the registration is "conclusive evidence", subject to the defences listed in 1115(b). Incontestable is not unchallengeable. |
| The symbol you may use | TM or SM, at any time (TMEP 906). | The R symbol, and 15 U.S.C. 1111 makes it a condition: without the notice "no profits and no damages shall be recovered ... unless the defendant had actual notice of the registration". |
| Money on a confusion claim | Available. 15 U.S.C. 1117(a) allows profits, damages and costs for "a violation under section 1125(a) or (d) of this title", subject to the principles of equity. | Available on the same section, plus the registered-mark causes of action, and subject to the section 1111 notice rule. |
| Counterfeiting remedies | None of them. Both are written around a mark on the principal register. | Statutory damages of $1,000 to $200,000 per counterfeit mark per type of goods, up to $2,000,000 if wilful (15 U.S.C. 1117(c)), and ex parte seizure (15 U.S.C. 1116(d)). |
| Stopping goods at the border | Not possible. 19 CFR 133.1(a) recordation is for marks registered by the USPTO, on a current registration. | Recordable with Customs and Border Protection under 19 CFR 133.1(a), except marks on the supplemental register. |
| The platform brand programs | Closed. Per-item report forms only. | Amazon Brand Registry, Walmart Brand Portal and Meta Brand Rights Protection all gate on a registration. Brand Registry alone accepts a pending application. |
Two corrections, because both are repeated everywhere and both are wrong. You do not need a registration to sue in federal court, and you do not need one to recover money, because 15 U.S.C. 1117(a) puts profits, damages and costs on the table for "a violation under section 1125(a) or (d) of this title", subject to the principles of equity.
The second correction is bigger. Registration does not hand you nationwide rights: 15 U.S.C. 1057(c) is "Contingent on the registration of a mark on the principal register", it confers priority from the filing date rather than ownership everywhere, and the earlier-user defence in 1115(b)(5) survives it. In Dawn Donut Co. v. Hart's Food Stores, 267 F.2d 358 (2d Cir. 1959), the plaintiff held a federal registration, the defendant sold under the same mark in a separate retail market, and the court refused the injunction, because the two used the mark "in distinct and separate markets" and there was "no present prospect" of the plaintiff expanding into the defendant's trading area. The right to stop somebody came back only on a showing of intent to trade there, which is the idea courts call the natural zone of expansion. A certificate is a strong document. It is not a map of the country with your name on it.
How long brands actually wait before they file
A use-based trademark application has to state the date the applicant first used the mark in commerce, which means the USPTO's daily files carry the answer to a question nobody asks: how long does a real brand trade on an unregistered name before it files? We pulled the files and measured it.
Knockoff's analysis of 14,294 applications from the USPTO daily application files, six business days between August 24 and September 1, 2026, found a median of 100 days between first use in commerce and filing. About one in ten use-based applicants had waited more than ten years.
The median is the reassuring number and the tail is the interesting one. Among 6,983 use-based applications with a usable first-use date, the 25th percentile gap is 39 days and the 75th is 968 days. The mean is 1,247 days, about three and a half years, which tells you the distribution is dragged sideways by a long tail rather than centred anywhere near it. 65.0% filed within twelve months of first use. 18.9% filed after more than five years. The 90th percentile is 3,645 days, ten years, and the 95th is 6,218 days, seventeen.
The whole distribution, in seven buckets: 21.3% filed within 30 days of first use, 27.1% between 31 and 90 days, 16.6% between 91 days and a year, 6.8% between one and two years, 9.4% between two and five, 8.9% between five and ten, and 10.0% more than ten years after first use.
1 in 10
waited more than ten years after first use before filing
65.0% of use-based applicants filed within twelve months of first use and 18.9% filed after more than five years. The 90th percentile gap is 3,645 days and the 95th is 6,218 days, which is seventeen years between the first sale and the application. As of September 1, 2026.
Two other splits from the same pull are worth your attention. About half of everything that appeared in those six days of files is not use-based at all: 6,998 of the 14,294 applications, 49.0%, were filed on an intent to use alone, against 6,897 use-based, 48.3%, plus 106 on both bases and 292 on a foreign filing, with one row carrying no basis flag. A section 1(b) basis is a filing choice rather than proof that nothing has sold, so read it as about half of new applicants choosing to claim a place in line rather than to prove use. And unrepresented filers are not rare. 25.2% of all applications had no attorney of record when they were entered, split 21.2% on use-based applications against 30.0% on intent-to-use ones. Filing without a lawyer is normal, and it is also where the fixable mistakes live.
What this means for you, if you are reading this because someone is already copying you: the 100-day median is what an unremarkable, non-panicked filing schedule looks like. The ten-year tail is what it looks like when a brand trades for a decade before it gets around to the paperwork, which is usually the year something forced the issue. You are somewhere on that chart already, and the only variable you control is which end.
How we counted, and what the numbers cannot tell you
Based on 14,294 trademark applications that appeared in the USPTO Trademark Daily XML application files for August 24, 25, 26, 27, 28 and September 1, 2026. The source is the USPTO Open Data Portal product for trademark daily applications. A new application is a case file carrying the event code NWAP, "NEW APPLICATION ENTERED", dated the file's own transaction date, which is what keeps the six daily cohorts disjoint, and deduplicating on serial number removed no rows. Filing basis comes from the as-filed flags rather than the current-basis flag. The gap is the filing date minus the earliest first-use-in-commerce date across all classes on the application. A second derivation, written independently and using no XML parser, reproduced every figure including each bucket.
Known limits. Six business days in late August is a small window and seasonality is untested. Applications were selected on the date they were entered, so some filing dates are weeks earlier. First-use dates are asserted by the applicant and unexamined at filing, and they skew round: 271 were month-only and 117 year-only out of 7,003, 5.6% of the sample, which we imputed to the 15th of the month and to July 1 respectively, and those partial dates cluster in the five-year-plus buckets. Reading the partial dates three different ways never moves the median off 100 days, and moves the ten-year share only between 9.8% and 10.0%, which is why that share is written here as about one in ten. 20 use-based applications, 0.3%, had no usable first-use date and are excluded. No first-use date fell after its filing date, which is what TMEP 903.02 forbids and the USPTO validates at submission. One more thing the dates say about themselves. Applicants round hard: 15.9% of use-based applications claim a first use on the first of a month, against roughly 3.3% if the day were uniform, and 3.14% claim exactly January 1, against roughly 0.27%. Another 1.37% claim a first use on the filing date itself. Treat an asserted first-use date as an estimate somebody typed, which is the strongest argument on this page for keeping your own dated records. "Unrepresented" means no attorney name was present when the application was entered. Madrid Protocol requests do not appear in a population selected this way. No mark text and no owner name was retained, and every figure on this page is an aggregate. We refresh this quarterly.
When to file, and what it costs
The base federal application is $350 per class, filed electronically, on a fee schedule effective January 19, 2025 and last revised August 14, 2026. Two surcharges are worth knowing before you start, because both are avoidable. $100 per class if the application is filed with insufficient information, and $200 per class if you write your own free-form description of the goods instead of picking an entry from the USPTO's identification manual. Writing your own paragraph is the expensive habit. The class finder maps your products to classes, and the cost calculator runs the whole ten-year figure, including the renewals that arrive later.
Then you wait. The USPTO's own dashboard put first-action pendency at 4.2 months and total pendency at 9.77 months in Q3 of FY2026. That is the wait before a certificate exists, which is why "file when it becomes a problem" is not a plan: the problem arrives first.
If you are filing before you sell, the application is an intent-to-use application under 15 U.S.C. 1051(b), which needs a "bona fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce" and, later, a statement of use with its own fee and its own clock. The statement of use is a deadline and a bill, and about half of new applications are filed on that basis. A use-based application under 15 U.S.C. 1051(a) needs the first use dates and a specimen instead, per 37 CFR 2.34(a)(1).
State registration exists and it is cheap. California charges $70 per classification and asks for a signed declaration of accuracy, with a civil penalty of up to $10,000 for a wilfully inaccurate statement. What it buys is a dated public record that you claimed the name in that state. Be clear about what it does not buy. No federal presumption of validity, no nationwide constructive priority, no right to the R symbol, and no Customs recordation. TMEP 906 says so directly: "Registration in a state of the United States does not entitle a person to use the federal registration notice."
File now if any of these is true
- A copycat already exists. The clocks that matter are 30 days after publication for an opposition and five years after registration for a cancellation, and being unregistered does not stop you using either. Being unregistered does stop you using most of the platform lanes.
- You want Amazon Brand Registry. A pending application is enough to enrol, so the wait starts the day you file rather than the day the certificate issues.
- Your name is not descriptive. A coined or arbitrary name gets through examination on its own merits. A descriptive one is a longer argument and may need years of use before it can register at all.
Either way, start keeping the evidence today, because every route above runs on it. The checklist is under the evidence to keep. The copycat store checker takes a domain and shows you what is on it, which is a reasonable way to capture a first dated look at the copycat's store.
TM, SM and the R symbol
A mistaken R symbol is usually fixed, not fatal: TMEP 906.02 says misunderstandings "are more frequent than occurrences of actual fraudulent intent", and TMEP 906.04 says an examining attorney "may not issue a refusal of registration based on fraud". The rule itself is absolute, because TMEP 906 says the symbol "may not be used with marks that are not actually registered in the USPTO. Even if an application is pending, the registration symbol may not be used until the mark is registered", and a state registration does not earn it either. Use TM instead, from your first day of trading, and fix a stray R before somebody makes it an issue in a dispute you started.
Where Knockoff fits
Connect a Shopify store by domain alone, and we watch for your product photographs across marketplaces and the open web, counting a match only when your photograph appears in the seller's own listing gallery. Each confirmed match arrives with the archived page, a timestamped screenshot, your original beside theirs and the notice already written, which is the copyright rail at the top of this page done for you and waiting on your approval. See what a case holds before you approve it, or run a scan on your store first.
The limits belong on a page like this one. Nobody here is a lawyer. Knockoff does not file trademark applications, does not write oppositions, and does not decide whether your unregistered mark is distinctive. What it does on the trademark side is watch new US applications every day and email you when one reads close to your name, which is the difference between using the 30-day opposition window and reading about it afterwards. Shopify stores only today, one store per company, US trademark watch only. No vendor in this category controls what a platform decides.
Questions
Should I put TM or the R symbol on my product name?
+
Use TM for goods and SM for services, from your first day of trading, because TMEP 906 says a party may use them "regardless of whether a mark is registered". The R symbol is the one with a rule: TMEP 906 says it "may not be used with marks that are not actually registered in the USPTO", and neither a pending application nor a state registration earns it. The section TM, SM and the R symbol above has the rest.
Do I have a case if I never registered my trademark?
+
Yes, you can sue. 15 U.S.C. 1125(a)(1)(A) creates a federal claim against a use likely to cause confusion as to "affiliation, connection, or association" or as to "origin, sponsorship, or approval" with no registration element anywhere in it, and 15 U.S.C. 1117(a) puts profits, damages and costs on the table for a section 1125(a) violation, subject to the principles of equity. What you have to prove, and what a federal suit costs, is set out under What you can do about a copycat this week above.
What counts as a common law trademark?
+
A name, word, symbol or device used on goods you sell, in a way that tells buyers where the goods come from. 15 U.S.C. 1127 defines use in commerce as "bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark", with the mark placed on the goods, their containers or their tags and the goods sold or transported. A name on a landing page for a product nobody can buy yet is not use in commerce.
Do common law rights beat a later federal registration?
+
In the area where you were already trading, usually yes: 15 U.S.C. 1115(b)(5) preserves an earlier user's rights, but only "for the area in which such continuous prior use is proved". That is a defence in your own market rather than a way to stop the registrant everywhere, and the section If the copycat already registered above covers the cancellation window that goes with it.
Is a common law trademark free?
+
The right costs nothing to acquire and a great deal to prove. There is no fee, no form and no certificate, so the evidence of who used what and when is entirely yours to keep: dated first sales by state, advertising spend, press coverage and screenshots. Every dollar you did not spend at the USPTO comes back as the cost of proving in a dispute what a certificate would have presumed.
Will a marketplace accept a trademark report with no registration number?
+
Sometimes, and the platform decides. Shopify's report form sits behind a Shopify login and branches to a common law path that asks for a first use date rather than a number, Walmart's trademark claim returns "Trademark number is required", and Amazon's counterfeit lane is written around a registered mark. Where the form refuses you, the copyright lane for your photographs is still open, because none of the platform copyright forms we could read asks for a copyright registration number.
What mistakes do first-time brand owners make with an unregistered mark?
+
Four, in order of how much they cost. Picking a descriptive name, which has no protection at all until it acquires secondary meaning. Using the federal registration symbol before a registration exists. Assuming that selling online gives rights everywhere in the country. And keeping no dated record of first use, which is the evidence every route open to an unregistered owner runs on: the platform report, the demand letter, and the application itself.
How do I check whether a name is already someone else's common law mark?
+
You cannot check completely, because the USPTO says results in its search database "are limited to federal trademark applications and registrations and do not include the trademarks of other parties who may have trademark rights but no federal registration". A search of the register, state registrations, domain records and ordinary marketplace and web searches is the practical floor, and none of it is a clearance opinion.
Cite this page
Pigford, Josh. "Common law trademark rights: what an unregistered mark lets you do against a copycat." Knockoff, published September 2, 2026. https://knockoff.co/guides/common-law-trademark
Sources and dates
Every source below was read September 2, 2026.
- 15 U.S.C. 1127: the definitions of trademark, use in commerce and commerce. 15 U.S.C. 1125: the section 43(a) claim at (a)(1)(A) and the non-functionality burden for unregistered trade dress at (a)(3).
- 15 U.S.C. 1052: the section 2(d) ground covering a mark "previously used in the United States by another and not abandoned", and acquired distinctiveness at (f). 15 U.S.C. 1051: use and intent-to-use applications, with 37 CFR 2.34 for what each basis requires.
- 15 U.S.C. 1057: the presumption at (b) and constructive use at (c). 1072: constructive notice. 1065 and 1115: incontestability, the surviving defences, and the earlier user's area at (b)(5).
- 15 U.S.C. 1111: the registration notice and what its absence costs. 1117: money for a 1125(a) violation at (a) and counterfeit statutory damages at (c). 1116(d): ex parte seizure, limited to a mark on the principal register.
- 15 U.S.C. 1063(a): the 30-day opposition window and its extensions. 1064(1): cancellation within five years. 37 CFR 2.149: the letter of protest. 19 CFR 133.1(a): what may be recorded with Customs.
- TMEP: 906 and 906.02 for TM, SM and the R symbol and the qualified fraud statement, 906.04 for the bar on a fraud-based refusal, 903 and 903.02 for the first-use-date rules, and 1207.03 for the section 2(d) provision not being applied in ex parte examination.
- USPTO: Why register your trademark?, last updated May 17, 2024, for the enforcement-area sentence and for the search database covering federal filings only. Fee schedule, effective January 19, 2025 and last revised August 14, 2026, for $350 per class and the $100 and $200 surcharges, with 37 CFR 2.6(a)(1)(iii). Trademarks dashboard, Q3 FY2026, for 4.2 and 9.77 months.
- Supreme Court cases, read on Justia: Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916); United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992); Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000).
- Courts of appeals, read as the opinion text published by the Caselaw Access Project: Dawn Donut Co. v. Hart's Food Stores, 267 F.2d 358 (2d Cir. 1959), for the registrant who was refused an injunction in a separate market; Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961) and AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), for the two lists of likelihood-of-confusion factors.
- Platforms, each read on its own page: Shopify's trademark notice; TikTok's intellectual property policy, released March 27, 2025 and effective April 26, 2025; Amazon's Report Infringement form and Brand Registry; Walmart Brand Portal; Meta's trademark report form; Google Ads trademark policy; WIPO Overview 3.0 section 1.3 for unregistered marks under the UDRP, with the WIPO schedule of fees for $1,500 before a single panelist for one to five domain names and the WIPO guide to the UDRP for the three decisions a panel can make. eBay, Etsy and Temu could not be read and are not in the table.
- State registration: California Secretary of State, trademarks and service marks, for $70 per classification and the declaration of accuracy.
- Our own figures: the USPTO Open Data Portal trademark daily application files for August 24, 25, 26, 27, 28 and September 1, 2026, six business days between August 24 and September 1, 2026. Method and limits are in the section above.
The forms at eBay, Etsy and Temu blocked automated reading on September 2, 2026, so we do not say what they ask for. The TikTok, Meta and Google Ads rows are marked as unconfirmed for the same reason: their policy pages are public and their forms are not.
Knockoff sells brand protection software and is not a neutral party. Knockoff is not a law firm and this page is general information rather than legal advice. Statutes, fees, manual sections and platform forms all change, so read the source before you rely on a figure here.
