Trademark law plays a big role in how businesses protect their names, logos, and reputations. But not all legal systems treat trademarks the same way. In some countries, like the United States, trademark rights can arise simply by using a brand in the marketplace. This is known as a common law approach. In other regions, like the European Union, rights mostly come from formal registration. This system is based on civil law, where the law relies more on written rules and official procedures.
For companies doing business across borders, understanding the difference between these systems is critical. A business that has strong brand rights in the US might find that those rights mean very little in Europe without a registration. On the other hand, the flexibility of the US system gives smaller businesses a chance to grow their brand before filing, which is not always possible in civil law countries.
This article takes a close look at how common law trademark rights work in the US and how they compare with the civil law model followed in the EU. It explains what these systems mean for businesses, why they matter in real-world branding, and how companies can build a smarter trademark strategy when expanding internationally.
Understanding the Foundations of Common Law and Civil Law in Trademarks
The legal foundation of trademark rights differs based on how each country treats law itself. In the United States, the legal system is rooted in common law. That means it relies heavily on precedent—on past court decisions—and the practical realities of business use.
If you start using a brand name or logo in the marketplace in the US, you can begin to build rights in that mark. You don’t have to register it first. What matters is actual use. These rights are called unregistered or common law trademark rights.
In contrast, the European Union operates under a civil law system. Here, the rules are more codified. The law is primarily found in written statutes. Rights don’t arise from use in the same way they do in the US.
In civil law countries like those in the EU, trademark rights typically only come into existence when a mark is formally registered with a government office. Use alone, even for many years, may not be enough to establish rights in the brand.
The US: How Common Law Trademark Rights Take Shape
In the United States, the moment a business starts using a mark to sell goods or services, it begins to acquire what are known as common law rights.
This is particularly valuable for small or emerging businesses that might not have the resources to file for registration right away. They can still prevent others in their local market from using confusingly similar names.
These unregistered rights are limited in scope. They are usually only enforceable in the geographic area where the mark is actually used. For example, if you own a coffee shop in Ohio using the name “Bean & Brew,” you may have common law rights in that name within your city or state—but not across the entire country.
If someone else opens a similar business with the same name in another state, and you haven’t registered your mark, it might be harder to stop them—unless you can show your reputation reached that area before theirs.
To gain broader rights, businesses in the US often choose to register their trademarks with the United States Patent and Trademark Office (USPTO). Registration grants nationwide protection and provides other legal benefits, including the ability to sue for damages in federal court.
But the key point remains: in the US, trademark rights do not begin with registration. They begin with use.
The EU: Where Use Isn’t Enough
In the European Union, the trademark system is built on civil law principles. The EU has a unified trademark registration system known as the European Union Trade Mark (EUTM), handled by the European Union Intellectual Property Office (EUIPO).
Under this system, simply using a name or logo in business does not automatically grant legal rights. You must register the trademark first to secure ownership and enforcement power.
This creates a very different situation for businesses. In the EU, someone else could register a mark you’ve been using for years—if you haven’t filed for it. And if they register it before you, they could gain superior rights to it, even if you used it first.
There are a few limited protections for unregistered marks in the EU, especially for marks that have achieved high recognition. These are sometimes referred to as “well-known” or “reputed” marks.
However, the threshold for proving that your unregistered mark is famous enough to block someone else’s registration is very high. Most businesses will not meet this standard unless they have invested heavily in branding across many EU countries.
Legal Culture and Mindset: Flexibility vs Formality
The cultural approach to legal protection also differs between these systems. In common law countries like the US, the law often adapts to real-world situations. Judges look at facts and context, including how consumers interact with a brand in the market.
That flexibility allows businesses to grow naturally and gradually build protection. It rewards use and encourages early brand development.
In civil law countries like those in the EU, the system values formal steps. Filing an application, documenting ownership, and following procedure are essential. Without taking those steps, businesses might find themselves without legal backing—even if they’ve been operating under the same brand for years.
This formalistic approach can create challenges for smaller companies or foreign businesses that are unfamiliar with how quickly things move in a first-to-file jurisdiction.
The Risk of Trademark Squatting and Strategic Filing
Because of these differences, the risk of trademark squatting is much higher in civil law systems. In the EU, a bad actor can register your brand name before you do and gain exclusive rights to it. This happens often when foreign brands expand without first securing registrations.
In the US, squatting is less of a threat. If a squatter hasn’t used the mark in commerce, their registration may not be valid. And if you’ve been using the brand before them, you may still be able to enforce your rights.
That said, squatting can still occur in the US, particularly when a business delays registration. But the ability to rely on common law rights gives brand owners more tools to fight back.
In the EU, the only real protection against squatting is early and proactive registration. Businesses that plan to enter the EU market are strongly advised to file their trademarks before launching.
Legal Remedies and Enforcement Power
When it comes to enforcement, registration strengthens a trademark owner’s position in any legal system. But in common law systems like the US, even unregistered marks can be enforced through court action.
A business can sue for passing off or unfair competition if someone copies its brand and creates confusion in the marketplace.
In the EU, enforcement almost always relies on having a registered right. Courts and authorities require clear proof that a business has legal title to the mark through registration. Without that, enforcement becomes significantly harder.
This again shows the broader reliance in the EU on formal proof, and in the US on marketplace realities.
Practical Implications for International Businesses
For businesses operating across the Atlantic, the contrast between the US and EU trademark systems has real-world implications. A company that starts in the US might enjoy protection for its brand just by using it, even if it hasn’t registered it yet. That early use builds a legal foundation that can later support broader protection.
But if the same company expands into Europe using that same mindset—launching first, registering later—it could find itself facing serious problems. In the EU, someone else might register the brand name first. And once that happens, the original business could be blocked from using its own identity, even if it has been in use for years elsewhere.
This can be especially risky in fast-moving markets like fashion, tech, or consumer goods, where brand names gain attention quickly. A competitor—or a trademark squatter—can move swiftly to register a rising brand and gain control over it in multiple countries through the EU trademark system.
Companies need to change their trademark strategy depending on where they operate. What works in the US might not work in the EU. And what protects a name in one country might not count for anything in another unless steps are taken to register it locally.
This is why early registration should be a priority when entering a civil law jurisdiction like the EU. Filing before launch—not after—is often the safest approach.
Common Law Flexibility vs. Civil Law Predictability
While the US common law approach offers flexibility, it can also create uncertainty. Because rights are tied to actual use, businesses must be diligent in documenting how and where their trademarks are used. Without proper records, it’s difficult to prove those rights in court.
In the EU, the emphasis on registration creates predictability. Once a trademark is registered, it’s clear who owns it and what it covers. This helps reduce disputes about ownership, especially when doing business in multiple countries.
That predictability is a double-edged sword, though. If you miss your chance to register a brand early, it might be too late to recover it later. Even if you’ve been using it in one country, you may not be able to stop someone else who filed for it first across the EU.
In contrast, in the US, the ability to rely on prior use creates room to fight back. A registered trademark can still be challenged by someone who can show they used it earlier. That kind of legal flexibility isn’t usually available in a civil law system.
The Role of Reputation and Goodwill
Another major difference lies in how reputation is treated. In common law countries, the concept of goodwill is central. Businesses build trademark rights by gaining customer recognition. Courts look at the strength of that connection—how well the public associates a name or symbol with a specific source.
Even if a trademark isn’t registered, if it has a strong reputation, it may be protected under common law. This is especially important for local businesses, startups, and legacy brands that grew before formal trademark systems were common.
In civil law jurisdictions, reputation plays a role but only after registration. A trademark needs to be in the registry before courts and regulators give it significant weight. Exceptions exist for very famous marks, but those are rare and hard to prove.
This means businesses with growing customer bases in Europe must register early to fully protect the goodwill they’ve built. Simply having a good reputation without a formal filing won’t be enough if someone else claims the same or similar mark first.
Evolving Global Standards and Hybrid Practices
The line between common law and civil law trademark systems is becoming less rigid over time. Both systems have borrowed elements from each other to improve brand protection in a global economy.
For example, the US continues to emphasize use, but it also encourages registration and has made it easier for foreign applicants to file through systems like the Madrid Protocol. The EU, meanwhile, has started to consider use-based factors more seriously during renewal and enforcement phases.
India, South Africa, Canada, and other countries with mixed legal traditions are also adapting. They blend registration requirements with limited recognition of unregistered marks, especially in disputes involving passing off or unfair competition.
As more businesses go global, trademark offices and courts are recognizing the need for balance. They understand that rigid systems can hurt brand owners and that practical, flexible rules are necessary for modern commerce.
Still, these shifts take time. Businesses cannot assume that protections in one country automatically apply elsewhere. A trademark that is safe in Chicago may be at risk in Berlin or Paris if it hasn’t been filed there.
Strategic Takeaways for Building a Cross-Border Trademark Portfolio
Businesses that expand across jurisdictions must adapt their approach to trademark protection based on where they operate. The first step is understanding how the law works in each region—not just legally, but in practice. Relying on use alone may work in the United States, but in the European Union, formality wins. That means early filing is not just helpful—it’s essential.
For American businesses used to common law rights, the transition into a civil law system can be a bit of a shock. In the U.S., businesses often focus on brand development and wait to register until they’ve tested their name or logo in the market. In Europe, by the time a brand has gained traction, someone else may already own it on paper.
To avoid problems, businesses should consider preemptive filing in target markets—even before launching. That kind of planning helps prevent trademark hijacking, which is more common in first-to-file systems. Filing early sends a clear message of ownership and puts others on notice.
Another key point is documentation. In the U.S., proving use is essential. Businesses should keep solid records—like promotional materials, product packaging, digital ads, and invoices—showing when and where the trademark has been used. This becomes important in enforcement and in any disputes with later filers.
In the EU, while use isn’t required to register a trademark, it becomes crucial after registration. If a mark isn’t used for five continuous years, it can be canceled. So, even though filing first gives legal rights, those rights still depend on maintaining real market presence.
Enforcement Tools: Legal Remedies in Practice
In both systems, enforcement matters just as much as registration. A registered trademark means little if a business doesn’t monitor how others are using similar names or logos. In the U.S., trademark owners can rely on court actions for infringement, as well as administrative proceedings through the Trademark Trial and Appeal Board.
Enforcement also extends to customs. Businesses can record their trademarks with U.S. Customs and Border Protection to stop counterfeit goods from entering the country. While common law rights may help in court, they typically don’t offer this kind of border protection—registration does.
In the EU, enforcement also depends on registration. Once a trademark is on record, businesses can take legal action in national courts. They can also work with EU customs agencies to block imports of counterfeit products. Unlike in the U.S., there’s no real enforcement power for unregistered rights. That’s why early filing is often the only protection.
And even if a business wins in court, enforcing that judgment takes resources. Legal systems in both the U.S. and EU offer remedies like damages, injunctions, and sometimes attorney fees, but the process can be long and expensive. That’s why many businesses focus on prevention—monitoring new filings, policing unauthorized use, and responding early to problems.
Small Brands, Startups, and the Risk of Delay
One area where the common law system shines is in its accessibility to smaller players. In the U.S., a startup doesn’t have to spend money on registration right away. As long as they’re using the mark in commerce, they begin to build rights. This allows businesses to test their brand, adjust it, and invest in formal protection only when they’re ready.
But that approach can backfire when they go global. The same startup expanding into Europe might find out that someone else has already filed their brand name. And unlike in the U.S., they may not be able to reclaim it based on prior use unless they have a well-known reputation—which is rare for new companies.
This creates a practical dilemma. Do you wait until your brand has value to invest in international registration? Or do you spend early to protect future opportunities? There’s no one-size-fits-all answer. It depends on your goals, budget, and growth plan. But being informed is the first step to making the right choice.
Bridging the Systems: What Global Brands Must Know
More companies than ever are operating in multiple legal environments. A brand might be launched in California, sold online in Germany, and manufactured in Poland. Each of those markets requires different legal considerations, even though the brand is the same.
For that reason, global businesses must treat trademarks as long-term assets—not just names or logos, but legal tools that require maintenance. This includes registering early in civil law jurisdictions like the EU, proving use in common law systems like the U.S., and being ready to enforce rights wherever the brand appears.
Working with local counsel, conducting clearance searches before launch, and building a timeline for filings are all part of a smart strategy. These steps don’t just protect a company’s intellectual property—they protect its market share, reputation, and revenue.
As legal systems slowly evolve and adopt hybrid approaches, the global trademark landscape becomes more connected—but also more complex. Businesses must stay alert, stay informed, and invest in building trademark protection that works in both common law and civil law systems.
