Can an unregistered trademark be assigned [Expert Advice]

Last updated : Sept 15, 2022
Written by : Santiago Pillion
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Can an unregistered trademark be assigned

What happens if you don't register a trademark?

If you do not register your trademark, you will have legal rights only within the geographic areas where you operate. This means you may be able to stop a subsequent user of the mark, even if it is a bigger company, from using the mark in your geographic area only.

Can trademark be assigned?

Who can Assign a Trademark? Section 37 of the Trade Marks Act, 1999 states that the person registered as proprietor of trademark in the register of trademarks has the power to assign a trademark and receive consideration for such assignment. Thus, a trademark proprietor can assign a trademark to another person.

How long does an unregistered trademark last?

A federal trademark lasts 10 years from the date of registration, with 10-year renewal terms. Between the fifth and sixth year after the registration date, the registrant must file an affidavit to state that the mark is still in use.

Why use an unregistered trademark?

The biggest reason why unregistered trademarks are important is that they provide no protection in legal matters outside of local or state government. If you are using an unregistered trademark that represents your business in a small geographic location, you may be able to stop them.

Who owns an unregistered trademark?

Unlike registered trade marks, which can be assigned to a new owner by a written instrument such as an agreement or deed, the courts have held that ownership of unregistered trade marks can only be transferred together with the goodwill of the associated business.

Can trademark be protected without registration?

Unregistered trademarks are trademarks not registered under the Act. Unregistered trademarks can be used in relation to goods and services, but they will not possess legal benefits under the Act. However, unregistered trademarks can get protection under the common law.

Is registration of assignment compulsory?

This Section merely enumerates the mandatory requirement of registration of an assignment deed in order to act as a proof of title to proprietorship of over the trademark in respect of the goods or services.

What is the difference between an unregistered trademark and an unregistered service mark?

A ™ serves as notice to the public the words or symbols are an unregistered trademark. In contrast, trademarks granted by the United States Patent and Trademark Office (USPTO) may have the ® symbol next to the trademark.

Can I trademark a name already in use but not trademarked?

1. Can You File for a Trademark That Exists? Updated November 12, 2020: If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself.

Can there be two trademarks with the same name?

The short answer is, “it depends.” It depends on (1) Whether the other business is in the same industry; (2) Whether the other business is in the same geographical market; (3) Who was using the mark first; and (4) Who registered the trademark first.

Does a trademark have to be registered?

You are not required to register your trademark, but where or whether you decide to register your trademark can determine the scope of your rights. Specifically, you can rely on common law rights or file for state, federal, or international trademark registration.

Which symbol represents an unregistered trademark?

The trademark symbol ⟨™⟩ is a symbol to indicate that the preceding mark is a trademark, specifically an unregistered trademark. It complements the registered trademark symbol ⟨®⟩ which is reserved for trademarks registered with an appropriate government agency.

Can an unregistered trademark be licensed in India?

It is permissible to license an unregistered Trade mark. Permitted use without recordal of Registered User is permissible under the Trade Marks Act 1999, which came into force on September 15, 2003.

What is trademark assignment agreement?

A trademark assignment agreement outlines the transfer of a trademark owner's rights, title, and interest in and to the service mark/trademark. During the assignment process, the assignor transfers property rights in the mark to the assignee. However, a trademark assignment differs from a license.

What happens if someone else trademarks my brand name?

Trademark Registration Then, the owner can face a lawsuit for using the same name as someone else even if the second party registered a trademark for the company after the first owner created the company. These situations usually require the services of a lawyer to both understand and pursue.

Can I trademark a name that's already in use?

A registered trademark offers legal protection to unique logos, designs and names your business uses. You can't file to register a trademark that someone else is already using if they used the trademark first.

What names Cannot be trademarked?

  • Proper names or likenesses without consent from the person.
  • Generic terms, phrases, or the like.
  • Government symbols or insignia.
  • Vulgar or disparaging words or phrases.
  • The likeness of a U.S. President, former or current.
  • Immoral, deceptive, or scandalous words or symbols.
  • Sounds or short motifs.

Can you trademark a name with one letter difference?

Q: ""Can I trademark a name with one letter difference? "" Answer: Hardly ever. You can't register KOKE.

Can an unregistered trademark be assigned without the goodwill of the business?

ASSIGNABILITY OF REGISTERED OR UNREGISTERED TRADEMARK:- As per section 38 of the Act, a registered trademark can be transferred with or without the Goodwill of the business concerned either in respect of all the goods or services in respect of which the said trademark is registered or of some of the goods or service.

What is the position of an unregistered trademark under the Trademark Act 1999?

Section 34 and Section 35 of the Trademark Act, 1999 gives statutory protection to unregistered trademarks. These sections safeguard the interest of an unregistered trademark by simply stating that a prior user of a trademark will get priority over subsequent users, despite being registered.

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Can an unregistered trademark be assigned

Comment by Ignacio Shanaa

hi again today we discuss uh something that comes up regularly in our practice and some of uh people may not be aware of it and some people have very wrong understanding of the subject and common misconceptions that this is with regard to trademark now all of us who are in business usually operate under a trademark of our own be it xyz or in our comp with the design or otherwise now many of us many of what we have seen in our profession that many of my clients usually do not uh and specifically it's true for small and medium enterprises that they have never registered their trademark they have not registered now somebody else starts using the goodwill that has been generated by one of my clients then what is his recourse i was astounded a few days back when i talked to some of the people and they all aware of the opinion that well he has not registered so he has no recourse in law but that is not so absolutely not so the recourse was there prior to the advent of the trademarks act or in india this is a recourse which has been there for hundreds of years and that's under the common law the common law and the law of passing off passing off somebody's goods as if it's your own so if you have a trademark under which you operate and you have not registered it and suddenly you find that somebody else is using it somewhere don't be crestfallen don't think that you have no recourse you have a proper valid recourse under the indian legal system and you can immediately apply and file a suit and apply for an injunction against that person from using it and you can also claim damages is under the law of thought it's a law of passing off so please be aware of this and whenever you see there isn't any kind of somebody who is trying to use your product your trademark to pass off his products as yours immediately consult a legal professional and immediately take adequate action to safeguard your own interests and you and your the benefits and goodwill of your own trademark thank you have a nice day and hope this helps

Thanks for your comment Ignacio Shanaa, have a nice day.
- Santiago Pillion, Staff Member

Comment by Bifferinik

so here's another question from Cora will the trademark examiner check unregistered trademarks am on dream income the founder of trademark factory and here's my answer to this question so when you file your trademark application the trademark examiner will look at it several months after you file it and what they're gonna look at is all trademark applications and registrations that have entered the trademark offices system so they're gonna look at trademarks that have just been filed the formalized trademarks approved trademarks trademarks that have received an office action they look the trainers have been allowed they've been opposed they're look gonna look at trademarks that have been registered so they're gonna look at all trademarks that are part of the trademark offices system regardless of where in the process those applications are but they're not gonna look at trademarks that have never been filed for as part of the trademarks offices system so sure question was are they only looking at trademarks that are already registered then the answer is no they're also gonna look at trademarks that have been filed so for example somebody files for the same trademark as you're trying to file and they've filed you know the same trademark a few days before you did the trademark examiner he is going to look for that trademark they're gonna find that trademark and they're gonna slide that previously filed trademark application as in an office action that you're gonna receive for your trademark application but if your question is are they gonna look outside of the trademarks office system then the answer is no they're not they don't care about brands that brand owners never bothered even try registering so here's your answer to this question I hope you found it useful if you haven't subscribed yet make sure you do and if you've got more questions about trademarks make sure you comment below post your question there and I'll answer them in a video just like this one until then I'll see you in the next video

Thanks Bifferinik your participation is very much appreciated
- Santiago Pillion

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