How do you enforce an unregistered trademark?

How do you enforce an unregistered trademark?

What is more, to enforce these rights in the absence of a federal registration, parties must plead and prove that they:

1. are the senior user of the mark in connection with the relevant products or services; and.
2. have sufficient market penetration to preclude a newcomer from using the mark in a specific geographic market.

What happens if a trademark is not registered?

An “unregistered trademark” is one which does not possess legal benefits. But in some cases, an unregistered trademark may get common law benefits. Thus, owner of an unregistered trademark may be able to prevent use by another party of an infringing mark pursuant to the common law tort of passing off.

What legal action can be taken by a person for unregistered trademark?

As per Section 27 of the Act, no action for infringement can be taken in case of an unregistered trademark. Whereas, if a registered trademark is infringed, the aggrieved person can sue and take action for such infringement of his mark and can even ask for reliefs.

Do unregistered trademarks expire?

With common law trademarks, abandonment is presumed after three consecutive years of non-use of the mark or if the mark becomes generic. Because common law marks are not registered, non-use is the primary basis for presuming abandonment.

Who owns an unregistered trademark?

An unregistered trademark is a mark that has not been registered at the U.S. Patent and Trademark Office (or at any of the state trademark offices). Owners of unregistered trademarks nevertheless have legal rights within the geographic areas in which they operate.

Can you have a trademark without registering it?

If you do not register your trademark, you will have legal rights only within the geographic areas where you operate. Although the range of protection is limited to the region where you use your unregistered trademark, you can protect an unregistered but valid trademark from infringement and dilution under common law.

Is there infringement protection for unregistered trademarks?

While the extent of protection is typically limited to the region where the trademark is used, an unregistered trademark (communicated by the symbol TM in superscript, though this is not required) is still protected against infringement and dilution under common law.

Can unregistered trademark be infringed?

Passing off Action for unregistered mark In case of misuse of a registered mark, the right holder can initiate an infringement action against the violating party. But for misuse of unregistered marks, the right holder is entitled to claim protection under the law of passing off.

Does a trademark have to be registered to be protected?

You are not required to register your trademark, but where or whether you decide to register your trademark can determine the scope of your rights. Specifically, you can rely on common law rights or file for state, federal, or international trademark registration.

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.

Does a trademark have to be registered to be valid?

Trademarks do not have to be registered in order to be valid. The person who uses a mark in commerce first obtains a trademark on that mark. The person who obtains a trademark on a mark also obtains the right to prevent others from using that mark in commerce.

Can you sue for trademark infringement without registration?

1. We cannot get sued for trademark infringement because we have a federal registration. This essentially means that, even without a trademark registration, a mark owner is entitled to trademark rights so long as it uses the mark in connection with providing goods and services in commerce.

Can a trademark be protected without registration?

Famous unregistered trademarks can be protected under dilution laws. (Note, some functioning regional trademarks may not qualify for registration because they are not used in commerce regulated by the federal government, typically, interstate commerce.) These protections exist even in the absence of trademark registration.

What can I do if someone infringes my trademark?

Your trade mark does not have to be registered (and in some cases, an application may be refused), but you can still take steps to stop someone from infringing your unregistered trade mark. The trade mark owner can take formal legal action if someone else uses their mark without their permission. This is done through a passing off action.

Is an unregistered trademark the same as a trade name?

A trade name for your business is not the same as an unregistered trademark and is not given the same protections under federal trademark law. Although the range of protection is limited to the region where you use your unregistered trademark, you can protect an unregistered but valid trademark from infringement and dilution under common law.

How do I register a trade mark in the UK?

Under UK law, a trade mark can be registered with the UK trademark and Intellectual Property Office (IPO).