Introduction
Though not all trademark disputes result in litigation, many do, and they can be time-consuming, costly, and lead to negative publicity. However, by understanding the difference between registered and unregistered trademarks, you can avoid some of these pitfalls if you ever run into issues with another company’s trademark. Here’s a look at the main differences between registered and unregistered trademarks.
Registered Trademark vs Unregistered Trademark
An unregistered trademark has not been formally registered with a government authority, such as the United States Patent and Trademark Office (USPTO). There are no rules about who can use an unregistered trademark, or for how long it can be used before you risk someone else claiming ownership of it. A registered trademark, on the other hand, is filed with authority like USPTO so anyone else who wants to use it has to get your permission. While registering your trademarks isn’t required by law in most countries (see below), many small businesses choose to register anyway because it allows them to protect their brand from potential infringers. It also gives them more legal rights if they need to take legal action against someone using their trademark without permission.
Difference Between Registered Trademark and Unregistered Trademark in Tabular Form
| Parameters of Comparison | Registered trademark | Unregistered trademark |
| Meaning | A registered trademark gives you a legal claim to your brand. If someone else is using your brand, they can be held liable | An unregistered trademark is created when you start using an identifier to brand your product or service. |
| Symbol | ||
| Governed by | Trade Mark Act, 1999 | Common-Law |
| Obligation to prove any claims | At the point when the legitimacy is tested, it lies with the adversary, in the underlying time frame. | At the point when the legitimacy is tested, it lies with the proprietor. |
| Location | Countrywide security is available. | The owner needs to demonstrate the region, where it has acquired altruism. |
The definition of a trademark
A trademark is a word, phrase, symbol, or design that identifies one seller’s product or service as distinct from those of other sellers. An organization can register its trademark with the U.S. Patent and Trademark Office (USPTO). This gives legal protection to intellectual property rights for owners of trademarks. Registration also provides constructive notice to others that someone else owns rights to a particular trademark. However, federal registration does not guarantee that you will be able to prevent others from using your mark in commerce—it simply means you have priority over them if they try to do so once you use it first. A trademark is a word, phrase, symbol, or design that identifies one company’s products and services as those of another. A trademarked product has special value because it helps consumers recognize its brand name. Trademarks do not exist in nature; they are created by people to identify goods and services with their source. Thus, all trademarks are registered with some government agency, such as the U.S. Patent & Trademark Office (USPTO). The USPTO registers trademarks on behalf of federal agencies, but it does not register trademarks on behalf of states or other governmental entities.
What is a Registered Trademark?
A registered trademark gives you a legal claim to your brand. If someone else is using your brand, they can be held liable. By registering your trademark, you are given a better legal footing if you need to take action against an infringer. With an unregistered trademark, on the other hand, there’s no clear course of action available if someone else were to use it. You might not even realize that infringement is occurring until it’s too late (and someone has already built their own business off of it). Though you cannot bar anyone from using an unregistered trademarked term—even in its exact form—you do have rights over those who use your mark in connection with similar goods or services to yours. In some cases, you may also be able to sue for damages caused by another party’s unauthorized use of your trademark. To get these protections, however, you must first establish common law rights for your mark through use-based methods like advertising and marketing efforts. The problem with common law protection is that it doesn't provide much defense in court; most judges will side with whoever has registered their trademark first.
Benefits of the Registered Trademark
Registering your trademark offers some important benefits. First, registration can provide you with nationwide notice of your claim of ownership of a mark, which may deter third parties from using it in bad faith. Second, federal registration provides constructive notice to others that you have registered your mark, which means that anyone who subsequently uses your trademark could be liable for infringement if they were aware of it when they began using it. And third, federal registration allows you to bring an action for infringement in federal court. This is distinct from common law trademark protection, where state law typically applies and litigation may be brought in state court. For all these reasons, consulting with an experienced attorney about how to register your trademark is an excellent idea. If you choose not to register your trademark, however, you will still enjoy common law rights under state laws. It’s just that federal registration has advantages as well. If possible, though, try to register your trademark at both the state and federal levels.
Pros of a Registered Trademark
Registering your trademark provides more comprehensive rights to protect your intellectual property. In many cases, you can bring legal action against other companies that use a similar name or logo, preventing them from profiting off of your original idea. Legal actions are less familiar with unregistered trademarks; however, you can still request that an infringing company stop using a mark similar to yours. If they fail to comply, you may sue for damages. A registered trademark also gives you exclusive rights to any foreign markets where it is registered. You cannot file a suit in foreign countries without registering your mark first. However, if someone else writes a similar mark in another country before you do, they will have priority over your claim. Finally, a registered trademark allows you to take advantage of state and federal anti-dilution laws, which prevent others from making products or services that might cause consumers to associate your brand with theirs. For example, if someone created an online gaming site called GamersPlanet, consumers might assume it was affiliated with GamersPlanet Inc., even though there was no such affiliation. The law protects businesses like GamersPlanet Inc.
Cons of a Registered Trademark
If you are not careful, registration can lead to trouble. The process is public, which means that anyone can see your application as it moves through various stages. If you have made an error on your application or if there is opposition from others who believe they will be harmed by granting your mark, nothing is stopping them from filing an objection with the USPTO. This could result in extra time and money spent on your part, neither of which is ideal for an entrepreneur on a tight budget. In addition, if you don't register with USPTO quickly enough after using your trademark (as defined in your application), someone else may beat you to it.
What is Unregistered Trademark?
A trademark is created when you start using an identifier to brand your product or service. That identifier must be distinguishable, so there’s no way it could be confused with other brands or trademarks. If you meet those criteria, your brand can be protected even if you haven’t officially registered it as a trademark. For example, any time someone hears Just Do It, they know it’s related to Nike and its athletic shoes. The same goes for Got Milk? and its dairy campaign, which launched in 1993 without filing for registration (although it did start getting serious about copyright protection in 1995). Both of these campaigns have been wildly successful—so much so that others are legally forbidden from using them on their products. There are several benefits to choosing unregistered trademarks over registered ones: You can use them immediately after creating them. You don’t need legal representation to file paperwork; just make sure you follow certain rules regarding what constitutes a brand identifier. There are fewer restrictions on where and how often you use your unregistered trademarked material, though there may still be some limitations depending on what industry you're in. However, there are also drawbacks: Your right to the exclusive ownership of your brand only lasts as long as you continue using it regularly. If another company starts selling similar products under that name, yours becomes vulnerable because anyone could potentially claim ownership over it once they begin marketing similar goods under that name.
Pros of Unregistered Trademark
Unlike registered trademarks, unregistered trademarks don't cost anything to file or maintain. Businesses can use unregistered trademarks more easily than registered ones. Some countries, like Canada, don't require any registration at all to protect your trademark. There are some disadvantages to having an unregistered trademark though. If another business also has an unregistered trademark on their product and yours is similar, it might be hard for you to prove that you came up with it first if things go south legally. Because they're not filed formally with a national trademark office, companies who have unregistered trademarks can have trouble enforcing them abroad—but if you only plan on selling locally, that may not be an issue for you.
Cons of Unregistered Trademark
If you apply for an unregistered trademark, your registration is effective as soon as you file your application. The downside to an unregistered trademark is that it only lasts for five years (unless you re-file). If your brand or product catches on during those five years, you’ll have to decide whether or not it’s worth renewing. In addition, unregistered trademarks are easier to file than registered trademarks. For instance, if someone else tries to register with Apple they will be out of luck because Apple has filed and received protection first. With an unregistered trademark, however, anyone can legally use a word in their brand name—even someone who has no affiliation with your company. This means that while you might get some initial traction with your unregistered trademark, others could swoop in and take over.
To ensure there is no confusion between two brands using similar names or logos, businesses often choose to register their trademarks. This process involves filing paperwork at both state and federal levels. While these steps may seem intimidating at first glance, registering a trademark offers many benefits including exclusive rights to use certain words and symbols associated with your business for up to 10 years. Additionally, once you own a registered trademark, other companies cannot stop you from using it even if they have used similar marks previously. Furthermore, if another business tries to infringe upon your registered mark by using similar wording or symbols in their brand name or logo design then you can sue them for damages!
Designation System
The United States Patent and Trademark Office (USPTO) designates trademarks either as registered or unregistered. To be registered, an application must include evidence that the trademark is being used in commerce; however, an unregistered trademark does not require evidence of actual use. As for legal weight—an unregistered trademark can't stop another business from using its name, but it may be possible to win damages in court if you're able to show that someone else intentionally copied your work. Meanwhile, a registered trademark is legally binding; therefore no one can compete with it or even produce similar goods or services. To learn more about how to protect your brand, read on!
Main Difference Between Registered Trademarks and Unregistered Trademarks in Points
It is clear from just these two titles that there are many different types of trademarks, most of which have to do with ownership. So what exactly is a trademark and how does it differ from another type of legally protected intellectual property like copyright or patent?
- A trademark simply refers to a brand name for any product, be it food, vehicles, or even more abstract concepts.
- While trade names can be confusing when related to trademarks because they can refer to both brands as well as generic names, they should not be confused with them since they differ in various aspects.
- The main difference between registered and unregistered trademarks often hinges on who owns them: companies or people.
- For example, if you own a company you would likely want to register your mark so that no one else could use it. This protects your business and prevents confusion among consumers who might think your products are connected to someone else’s.
- On the other hand, if you were an individual artist or designer looking to protect your work, you would register your mark under an intent-to-use basis so that you could reserve rights without having used it yet.
- In some cases where intent to use is impossible (for example if someone else already has a similar mark), you may need to file an amendment after using your mark to claim full rights over it.
Conclusion
The distinction between registered trademarks and unregistered trademarks isn’t hard to grasp, but it’s an important one to understand. A registered trademark is typically your best form of protection, providing some leverage against others who might infringe on your rights. An unregistered trademark, on the other hand, provides no such protections unless you can establish common law rights in that mark. To summarize: Unless you have a legally recognizable mark, you have nothing more than an idea—not even a concept—of ownership. How do you get a legally recognizable mark? You register it at either state or federal levels.
