Can i use an unregistered trademark [Beginner's Guide]

Last updated : Sept 16, 2022
Written by : Monte Mauter
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Can i use an unregistered trademark

What happens if a trademark is not registered?

Thus, owner of an unregistered trademark may be able to prevent use by another party of an infringing mark pursuant to the common law of passing off. The owner or proprietor of such unregistered mark does not possess a right to sue for infringement under S.

What is the difference between a registered and unregistered trademark?

A registered trademark is any symbol, sign, word, etc. used as a trademark by the company and registered under the Trade Mark Act, 1999. An unregistered trademark refers to any symbol, sign, word, etc., used by the company as a trademark, but not at all registered.

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.

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.

What rights do unregistered trademarks have?

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.

How do I protect an unregistered trademark?

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.

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.

What protection does an unregistered trademark have?

For unregistered marks, there is no legal presumption of ownership and exclusive right to use. Protection is limited to the geographical area in which the mark is used.

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.

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.

What happens if someone uses my trademark?

If the person or entity receives your letter and continues to use your trademark, it's time to file a lawsuit. The suit will get filed in federal court if it spans more than one state. If the infringement is local, it may get filed in a state court.

Can the same name be trademarked twice?

However, if the two products are not related to one another and not likely to cause any confusion, then trademark law will not prevent the two companies from using the same name. Put differently, if the same name is registered in different trademark classes, this does not give rise to an infringement claim.

Can a company sue you for having the same 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 2 businesses have the same name?

Can Two Companies Have the Same Name? Yes, however, certain requirements must be met in order for it to not constitutes trademark infringement and to determine which party is the rightful owner of the name.

What qualifies as trademark infringement?

To prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff's consent.

Can I sue someone for using my logo?

Any time your company uses a logo to identify its products or services, you establish common-law trademark rights. Common-law trademark rights may allow you to sue a competitor to prevent it from using your logo, particularly if it is in a way that attempts to portray itself as your company to consumers.

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.

What are the 3 types of trademarks?

What you'll learn: Arbitrary and Fanciful Trademarks. Suggestive Trademarks. Descriptive Trademarks.

Can you trademark a business name that already exists?

So yes, it's entirely possible to trademark a last name, but if you cannot satisfactorily prove “acquired distinctiveness” to the United States Patent and Trademark Office (USPTO), you will be denied the full protection of federal law for your trademark.

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Can i use an unregistered trademark

Comment by Rosaria Nembhard

Thanks for this great article

Thanks for your comment Rosaria Nembhard, have a nice day.
- Monte Mauter, Staff Member

Comment by Donetta

hi I am really excited to introduce my new YouTube channel to you if you're not familiar with me my name is a hottie it was and I'm the principal and founder of a [ __ ] Amos P LLC we are a small law firm that specializes in intellectual property matters we can do anything for you that there's a latest intellectual property including trademark and patent prosecution as well as post issuance work so interferences litigation opposition's cancellations you name it we can do it if you don't know me I'll give you a little bit of background for me I have an undergraduate degree in chemistry and impatient health policy and management and a JD I completed a fellowship in intellectual property at Franklin Pierce Law Center which i think has changed its name to something else that was a long time ago I've been practicing for 20 years and this is pretty much all I've ever done so I feel pretty comfortable in in this space we generally represent entrepreneurs inventors and small businesses on all matters that we're we're competent to represent them on so funding issues as well as intellectual property contracting things of that nature I am super excited to let everyone know that I am going to be answering one question from a YouTube fan or a client each week and providing that bit knowledge for free to everybody so this is a great opportunity for folks who are already kinds of mine or folks who are thinking about being a law firm client to ask a question without pay so send your questions and you can send your questions to a [ __ ] at a [ __ ] Amos com if you are not sure how to spell it just look below in the comment box and I will provide all the information that you need with all that being said let's get to the question the question of this week is can I use a trademark if if it's not registered no you can't a lot of people get into a buttload of trouble by doing a search at the USPTO s and in the USPTO trademark database they don't find a word or a phrase that they want to use and they think that they can then go use it well you can't trademarks are not based on registration now you get heightened protections if you do register it and it's often necessary to register it to do things like - and for SOTA to sue someone but you actually get trademark rights from use so you need to use the trademark and someone may have used the trademark but they have neglected for some reason to register it so you really need to do a comprehensive trademark search in order to figure out if that trademark is available to use you really don't want to invest ten or twenty thousand dollars in branding you know websites business cards whatever you name it t-shirts you don't want to invest any money until you know that you have a pretty good chance of being able to use that without infringing someone's rights again I mean people go years and years using a trademark that they they very well do have rights to and they just don't register it all they have to do in order to see you is to go and register it really quickly they claim a first use and then they sue you for a bunch of money and even if they don't get any money from you they can definitely stop you from using it including you know taking your domain from you that may infringe their mark or just stopping you from using it all together people also needs to realize too that infringement of a trademark is not based on the same standard as a copyright with a copyright you actually have to have a copy with trademark not so much trademarks require a likelihood of confusion so what we're looking at is not an exact match so if you want a trademark jinx and you spell it with the cks and someone spells it with an X it still sounds like jinx and they're still in likelihood of confusion so these types of matters really need to be taken up with an attorney you need to go to an attorney who is qualified to do a trademark search don't go to anyone else because trademarks are very grave so you want to go to someone who is accustomed to actually doing these types of searches and who knows what they're doing because it's not easy to find trademarks you want someone who's going to look at domain names who's going to look at things that are really the same words that are spelled the same sounds that sound the same you can get to trademark on the sound colors that are similar you want to you want to consider every type of mark every word that could possibly cause a likelihood of confusion and if there is any chance that there's a likelihood of confusion I'll probably tell you move on to the next mark don't waste your money not only will it be expensive if you're sued for trademark infringement but it will be really expensive to even get the mark because if I find it the trademark office is also gonna find it so great I hope that was helpful to you I'm looking forward to getting all your questions please send them in again a [ __ ] at a [ __ ] Amos com you should also sign up for my blogs they can be found at a [ __ ] Amos slash I mean sorry a [ __ ] Amos calm slash blog and please also subscribe to this youtube channel again I will put out at least one video a week maybe more at the beginning here's the question start rolling in send me your questions oh and I forgot I'm a lawyer I need to give you a disclaimer when I give this advice this is not legal advice I am simply teaching you these areas of law I can't give specific advice to anyone so if you send me a question I'm going to respond by giving you the black letter of the law it is not smart to watch a YouTube video and think that that person is giving you specific advice just think about it think about how many times you've watched a hair video and you've tried to replicate it don't do it you still need to go to a professional I don't know you I don't know the particulars don't even send me the particulars I don't want to hear it I just want a clean question no background I'll answer it I'll let you know if it's something I think you can handle on your own is something that you need a professional on but again disclaimer I am NOT giving you legal advice I don't know you I am NOT little your lawyer I'm only your lawyer if you sign an engagement letter and you pay me a deposit otherwise I am just educating the public giving general generic advice and hoping that you will become an educated consumer because that helps me help you take care and please hit the subscribe button you

Thanks Donetta your participation is very much appreciated
- Monte Mauter

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