1. What Is an Unregisted Trademark?
2. Why Are Unregistered Trademarks Important?
3. The Lanham Act
4. Reasons to Consider Using an Unregistered Trademark
5. Reasons to Consider Getting a Trademark
6. Frequently Asked Questions
7. Steps to Apply

What Is an Unregisted Trademark?

An unregistered trademark is a logo, graphic, image, or word that has not been approved by the United States Patent and Trademark Office. However, companies can use the trademark (TM) logo to show their company has use of a particular of a visual idea. Other businesses can use this logo without legal matters in some cases.

According to the Trademark Act, unregistered trademarks are also defined as marks for businesses and goods that haven't been registered with the United States Patent and Trademark Office (USPTO). 

Why Are Unregistered Trademarks Important?

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. However, you cannot keep a party from stealing your brand or logo outside of that service area.

If you've already branded a trademark, your only option is a cease and desist order. If someone steals your logo, you still have legal recourse. You can take the infringer to court, but only if:

  • You can prove the mark is a valid trademark.
  • The infringer lives in another state.
  • The amount in question is more than $75,000.

What makes an unregistered trademark valid is that you only have to prove you were the first to design. The date of the unregistered trademark's design is the deciding factor in litigation. In some cases, you can have your trademark limited by a smaller or larger company if you didn't display it first.

However, you can file a registration that's considered a "constructive use of mark(s)" giving you priority over anything resembling your symbol. In that case, you can file for a trademark. In the meantime, no one can steal your logo. 

The Lanham Act

Any word, name, symbol, or device is protected by law. However, it's the Lanham Act that offers more. Trademark infringement is based upon use. A plaintiff with an unregistered trademark can win a court case. They must prove:

  • They had the first trademark in the market.
  • The trademark is valid, registered or not.
  • The other party wanted to confuse customers.

The Lanham Act was settled by the Popular Bank of Florida v. Banco Popular de Puerto Rico ruling. Under the Lanham Act, the other company must stop using your trademark, and you may also win restitution. 

Reasons to Consider Using an Unregistered Trademark

A business does not need to file for a registered trademark if it has no competitors. In this case, the state court is the only medium that can deny your logo. Otherwise, the burden of proof is on the plaintiff. It's important to note that an unregistered trademark doesn't receive any legal benefits except those provided under common law.

If you decide not to register your trademark, you can still get protection from the law, but only if you can prove that the mark is synonymous with the reputation and goodwill of a product, good, or service. If a company uses a rival unregistered trademark to sell their goods, this violates the common law tort of passing off. Passing off is where a person tries to profit off your reputation. However, proving passing off is the burden of the plaintiff.

Passing off can be successfully tried in court if the plaintiff proves:

  • There's a similarity in trade names and marks
  • The defendant is purposely using their name to sell goods.
  • The defendant can easily confuse customers of average intelligence and imperfect recollection.

Reasons to Consider Getting a Trademark

If you are in a larger location or want to expand, a registered trademark is worth the trouble. A registered trademark owner can:

  • Sue an infringer in federal court
  • Define presumption of ownership
  • Fight a court battle over a domain name
  • Be allowed for use in interstate commerce, making it recognizable and preventing infringers from saying they were unaware of the trademark
  • Add potential value
  • Add intellectual rights
  • Online sales
  • Get uncontestability in court if the registered trademark goes unopposed for five years.
  • Triple monetary damages and criminal prosecution for infringers

Even if you've never considered a trademark, it's a form of intellectual property that cannot be denied. In a larger market, it protects you from companies trying to infringe upon your hard work. However, the benefits outweigh any negative consequences making the trademark a sound business decision.

Frequently Asked Questions

  • Should I register my business trademark?

Only if you feel like another company could steal your unregistered trademark to make money on their behalf. If there are no competitors in your market, it's not in your best interest monetarily. You should also check the database of the United States Patent and Trademark Office to see if your logo is similar to any others.

If you must register a trademark, you have the legal right after filing. Even if you aren't granted a trademark immediately, no competitor can steal it. However, if you register and don't use the trademark, infringers can use this against you. 

  • What's the Difference Between a Registered and Unregistered Trademark?

A registered trademark offers full protection from the law. An unregistered trademark is contestable. 

Steps to Apply

If you feel you may benefit from a registered trademark, you can do the work online. After the trademark is approved, you are permitted to use the (R) symbol, which indicates that your idea isn't up for grabs. You can also sue if someone tries to imitate. 

Many small business owners feel that they can't get protection with an unregistered trademark. However, with the Lanham Act and first right, owners may have the protection they need. If you aren't sure about your trademark status, you can post your legal need here and receive free custom proposals from the top 5% of lawyers.