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Common law trademark rights arise from using a mark in commerce. For example, suppose someone opened a clothing store in New York named Blue Widgets in 2001. If no other store has been using the exact or similar name, then Blue Widgets would have the exclusive rights to use the name for a clothing store in New York.

Also, suppose someone else opened a clothing store in Miami named Blue Widgets in 2003. Both stores have common law rights to use the name in their respective locations. Even though the store in New York opened first, it could not stop the Miami store from using the same name because it only had common law rights limited to New York area.

In fact, if the Blue Widgets in Miami registered a federal trademark in 2005 then it will have received exclusive rights to use the name nationwide. Equipped with a registered federal trademark, it can safely expand the store name and services in other locations, except areas where a similar mark has been in prior use such as New York.

On the other hand, Blue Widgets in New York is limited to using the name only within the New York geographical territory. If it filed a federal trademark after 2005 it will be difficult if not impossible to register it since the US Trademark Office prevents registering similarly confusing marks.

This case shows several important aspects of trademark registration. First, the applicant who first receives trademark registration obtains exclusive rights nationwide, deters others from filing a similar mark, and prevents others from expanding in other geographical areas. Secondly, the applicant with earliest trademark filing date has priority in the registration process. Applicants who submit a similar mark afterwards must wait the outcome of prior filing applications.

If an applicant delays in filing a mark, it risks in allowing others to first file and register a similar mark. If that happens, the owner of a registered trademark would prevent subsequent applicants to obtain a federal trademark and expand in other geographical areas.

The above scenario represents a simple brick-and-mortar store example. Often times, goods and services reach a customer beyond the physical store walls interstate commerce transportation and the Internet represent new means to expose the mark in commerce. This demonstrates the importance in obtaining a federal trademark to protect a mark in the entire United States.

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