Difference Between Registered & Unregistered Trademarks
Registered vs. Unregistered Trademarks: Key Differences & Legal Protection
To prevent consumers from confusing their brand with others, businesses need trademarks, which act as identity shields by establishing product differentiation from competitors. Each trademark is entitled to varying degrees of legal protection under the law. Businesses seeking protection of their intellectual property rights need to understand properly between registered trademarks and unregistered trademarks.
What is a Trademark?
Companies use unique symbols, words, phrases, logos, or designs to establish product or service identification. The protection of trademarks helps businesses protect their brand recognition while stopping competitors from inappropriate brand utilization.
Registered Trademark vs. Unregistered Trademark
A registered trademark exists under government authority like the Indian Trademark Office, while unregistered marks rely on common law rights, such as the passing off principle, which grants limited protection. Registered trademarks receive superior protection than unregistered trademarks because of their registration status.
What is a Registered Trademark?
A registered trademark gains official status through trademark office recording, granting its owner exclusive rights to use the mark in connection with the registered goods/services across the country. The registered trademark carries an official identifier mark denoted by the symbol ®.
Advantages of Registering a Trademark
Exclusive Rights: The owner of a registered trademark has the exclusive right to use the mark for the registered goods and services.
Legal Protection: Trademark registration provides strong legal protection and makes it easier to enforce rights against infringers.
Nationwide Coverage: A registered trademark offers protection across the entire country.
Brand Protection: It helps prevent competitors from using a similar mark that could confuse customers.
Trademark Benefits in Legal Disputes: A registered trademark owner has a stronger legal position in disputes regarding ownership and validity of the mark.
Global Recognition: A registered trademark can be used as a basis for international trademark applications.
Monetary Benefits: A registered trademark can be licensed, sold, or franchised, creating additional revenue streams.
What is an Unregistered Trademark?
An unregistered trademark is a mark that a business uses in commerce without formally registering it. Practicing business with unregistered trademarks depends on common law trademark rights that provide restricted protection.
Legal Protection for Unregistered Trademarks
Common Law Rights: Under common law, businesses can claim rights over an unregistered trademark based on usage and reputation.
TM Symbol: Owners of unregistered trademarks can use the TM symbol to indicate their claim over the mark.
Geographical Limitations: Unlike a registered trademark, protection for an unregistered trademark is limited to the geographical area where it is actively used.
Enforcement Challenges: Enforcing an unregistered trademark in court requires proving reputation, goodwill, and consumer confusion.
Risk of Infringement: An unregistered trademark does not prevent others from registering a similar or identical mark, leading to potential legal disputes.
TM vs. ® Symbol: What Do They Mean?
TM Symbol: Used for unregistered trademarks to indicate a claim over the mark.
® Symbol: Used for registered trademarks, signifying legal protection and exclusive rights.
How to Protect an Unregistered Trademark?
Even without registration, businesses can take steps to protect their unregistered trademarks:
Consistent Use: Continuously use the trademark in commerce to establish rights.
Maintain Records: Keep records of usage, including invoices, advertisements, and branding materials.
Monitor the Market: Watch for potential infringements and take legal action when necessary.
Legal Notices: Send cease-and-desist letters to infringers to assert your common law rights.
Common Law Rights for Trademarks in India
The common law passing off principle safeguards unregistered trademarks in India. The trademark owner needs to present evidence which demonstrates:
Ownership of the mark
Reputation and goodwill associated with the mark
Consumer confusion caused by the infringer
Why Trademark Registration is Important for Businesses
Provides strong legal protection
Enhances brand recognition and credibility
Protects against infringement and misuse
Increases business valuation and marketability
Can an Unregistered Trademark Be Enforced?
The enforcement process for unregistered trademarks is more challenging due to legal requirements, but not impossible. The owner can file a passing off suit under Indian law by proving goodwill, misrepresentation, and damage. The trademark owner needs to establish extensive usage combined with reputation along with consumer confusion to succeed in court cases which creates a lengthy and expensive judicial proceeding.
Legal Risks of Using an Unregistered Trademark
Higher risk of infringement claims
Limited protection against competitors
Difficulty in enforcing rights
Potential loss of brand identity if someone else registers the mark
How to Convert an Unregistered Trademark into a Registered One
To upgrade an unregistered trademark to a registered trademark:
Conduct a Trademark Search: Ensure the mark is unique and not already registered.
File a Trademark Application: Submit an application with the relevant trademark office.
Respond to Objections: Address any objections raised during the examination.
Publication and Opposition Period: The mark is published for public review, allowing third parties to oppose it.
Trademark Registration Certificate: Once approved, the trademark is officially registered and protected.
Conclusion
The main distinction between registered and unregistered trademarks exists in both legal protection and enforceability. An unregistered trademark lets you establish a claim to name ownership but registration of your trademark through official channels brings better legal protection and universal mark exclusivity. A business needs trademark registration as a means to protect intellectual property together with control of potential legal issues. To ensure maximum legal protection and maintain brand identity, you should register your trademark, even if you have previously used it without registration.