Unregistered vs Registered Trademark

Unregistered vs. Registered Trademark

Comparison of Unregistered vs Registered Trademarks

Before the Federal Trademark Register was created to protect federal trademark registrations in the US, there was an unregistered trademark system for trademarks used in commerce. These non-registered, or common law trademarks still have protection within the US despite the federal registration system.

US Regd Trademark

The Federal trademark registration system has the advantage of providing a one-stop registration for your mark, to protect you across the Union. The mark, once registered, benefits from a presumption of validity and receives substantial benefits. Still, an unregistered mark that pre-dates the use of the registered mark will receive the benefit of use of the mark, typically in the form of permitted co-existence within the area where the unregistered trademark was used.

Unregistered Trademark (Common-Law)

Trademark rights can be established through use alone, and there is not cost or registration requirement. The common-law trademark typically provides protection within the limited geographic area in which it was used, for the goods and services for which it was used. To prove the date of first use, a holder of an unregistered trademark should keep receipts of payments for the goods and services, and the locations of customers.

Unregistered marks are best used to reduce the cost of a trademark filing program, protecting product names within a larger product umbrella. They should be marked with a TM in superscript after the mark to put viewers on notice that the name is being used as a trademark. Unregistered marks are also useful for trademarks that are not distinctive enough to be registered federally, in that they are descriptive or surnames, for example. These should also be marked with the TM, and may be registered federally in some cases after sufficient use to make them distinctive in the marketplace.

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