How to create an unregistered trademark (Common-law Trademark) using the TM symbol
What is an unregistered trademark?
In order to create a valid trademark, not all trademarks have to filed and registered federally. In fact, the majority of trademarks are names that companies use for products, often never filed at all. However, they still gain rights as trademarks from their use in the marketplace, for the time they are first used, for i) the goods and services with which they are used, and ii) in the geographical regions that they are used (products or services are sold). The best thing about an unregistered trademark is that it costs nothing, and just requires some steps to be faithfully followed.
An unregistered mark has basically the same protection over the exclusivity of the mark, and any “confusing” uses of the mark, as a registered mark does. You can use earlier use of an unregistered mark to oppose a trademark application, or to send a cease and desist letter to a competitor for using a similar mark (just make sure your use predates theirs). It’s great for marks that may be descriptive and therefore unregistrable, and for reducing the cost of your trademarks filing budget by protecting the less important marks by common law.
How to CREATE or FILE an unregistered trademark?
Mainly, an unregistered mark is created by use. Make sure you document sales of your product or service while using the unregistered trademark, and also the locations of all clients (and advertising). To assert your common-law mark, you’ll need to prove its existence, and that it is associated with the relevant products.
In a federally-registered trademark, the database of registered trademarks serves as notice to others of the mark. In the case of a non-registered trademark, you’ll need to put the TM in superscript to the right of the word (BRAND™) to put others on notice of the mark. And this is only when you are using the mark to represent the source of a product, rather than just using the word in a sentence.
Like all trademarks, to keep your unregistered trademark valid, you will need to police the mark using trademark monitoring (we offer trademark monitoring services) to ensure that others are not using your trademark without permission. If unauthorized use goes on too long then the user has created their own common-law rights, and you may be prevented from stopping them through a legal concept known as laches.
If you are interested in protecting one or more trademarks through common-law or as an unregistered mark, give us a call and we can provide you with a plan that will ensure the mark you have created stands up to scrutiny and protects your business name.