Important Differences Between Registered and Unregistered Trademark

Registered Trademark

A registered trademark is a type of intellectual property right that grants the owner exclusive rights to use a particular mark, symbol, logo, word, phrase, or design in connection with their goods or services. In other words, a registered trademark is a mark that has been officially registered with a government agency, such as the United States Patent and Trademark Office (USPTO) or the European Union Intellectual Property Office (EUIPO).

When a trademark is registered, it is listed in the official trademark registry, which can be searched by others to avoid infringing on existing trademarks. The registration of a trademark provides the proprietor with the exclusive rights to use the mark, for a period of 10 years and extend it further if required. The owner of a registered trademark can use the ® symbol next to their trademark, which indicates that it is registered and gives notice to others of their ownership rights.

The process of registering a trademark involves filing an application with the relevant government agency and meeting certain requirements, such as demonstrating that the mark is distinctive and not too similar to other registered trademarks. The registration process can take several months to several years and may involve opposition proceedings where other parties can challenge the registration of the trademark.

Once a trademark is registered, the owner can take legal action against infringing parties to protect their exclusive rights to use the trademark. The remedies available to a registered trademark owner include injunctive relief, which requires the infringing party to cease using the mark, as well as damages for any harm suffered as a result of the infringement. Overall, registering a trademark provides greater protection and benefits than an unregistered trademark.

Examples of Registered Trademark

Here are some examples of registered trademarks:

  • Nike’s “swoosh” logo – registered in 1971 with the USPTO.
  • Coca-Cola’s stylized script logo – registered in 1893 with the USPTO.
  • Apple’s “apple with a bite” logo – registered in 1979 with the USPTO.
  • McDonald’s “Golden Arches” logo – registered in 1971 with the USPTO.
  • Amazon’s word mark – registered in 1995 with the USPTO.

Types of Registered Trademark

There are several types of registered trademarks, which are categorized based on the type of mark and the goods or services associated with the mark. Here are some common types of registered trademarks:

  1. Word Mark: A word mark is a trademark that consists of a single word or a combination of words. Examples include “Nike,” “Coca-Cola,” and “Apple.”
  2. Design Mark: A design mark is a trademark that consists of a design or logo, such as Nike’s “swoosh” or Apple’s “apple with a bite” logo.
  3. Combination Mark: A combination mark is a trademark that includes both words and a design or logo. Examples include McDonald’s “Golden Arches” logo and Starbucks’ mermaid logo with the word “Starbucks” written next to it.
  4. Collective Mark: A collective mark is a trademark that is used by a group or organization to indicate membership or association with the group. Examples include the “Made in USA” mark and the “Fairtrade” mark.
  5. Certification Mark: A certification mark is a trademark that is used to certify that goods or services meet certain standards or criteria. Examples include the “CE” mark for products sold in the European Union and the “UL” mark for electrical products.
  6. Sound Mark: A sound mark is a trademark that consists of a sound or musical phrase. Examples include the NBC chimes and the Intel Inside jingle.

Characteristics of Registered Trademark

Here are some characteristics of a registered trademark:

  • Exclusive rights: A registered trademark provides the owner with exclusive rights to use the mark in connection with the goods or services for which it is registered. This means that others cannot use the same or similar mark for similar goods or services, without the owner’s permission.
  • Legal protection: A registered trademark provides legal protection to the owner against infringement by others. The owner can take legal action against infringers to prevent them from using the mark or seek damages for unauthorized use.
  • Validity: A registered trademark is valid for a period of 10 years from the date of registration, and can be renewed for further periods of 10 years each.
  • National and international protection: A registered trademark provides protection at the national level, where it is registered, as well as in countries that are signatories to international treaties, such as the Madrid Protocol.
  • Distinctiveness: A registered trademark must be distinctive and not descriptive of the goods or services for which it is registered. This means that the mark should be capable of distinguishing the owner’s goods or services from those of others.
  • Use: A registered trademark must be used in connection with the goods or services for which it is registered. Failure to use the mark for a continuous period of 5 years may result in the trademark being cancelled or removed from the register.
  • These are some of the key characteristics of a registered trademark. By registering their trademarks, businesses can protect their brand identity and prevent others from using the same or similar marks, which could lead to confusion among consumers.

Functions of Registered Trademark

A registered trademark serves several important functions, including:

  • Identifying the source of goods or services: A registered trademark serves as a symbol or indicator of the source of goods or services. When consumers see a trademark on a product or service, they know that it comes from a particular company or source.
  • Distinguishing goods or services: A registered trademark helps to distinguish the goods or services of one company from those of another. This helps to prevent confusion among consumers and ensures that each company is able to build its own unique brand identity.
  • Providing legal protection: A registered trademark provides legal protection to the owner against infringement by others. The owner can take legal action against infringers to prevent them from using the mark or seek damages for unauthorized use.
  • Building brand value: A registered trademark can help to build brand value over time. As a company’s reputation and brand recognition grows, so does the value of its trademark.
  • Creating customer loyalty: A registered trademark can help to create customer loyalty by providing consumers with a reliable indicator of the source and quality of goods or services. When consumers have a positive experience with a particular brand, they are more likely to seek out that brand in the future.

Elements of Registered Trademark

The elements of a registered trademark may include:

  • Name: A name, word, or phrase that uniquely identifies a company or product can form the basis of a registered trademark. For example, the name “Apple” is a registered trademark of Apple Inc.
  • Logo: A visual representation of a company, product, or service can be registered as a trademark. For example, the Nike Swoosh logo is a registered trademark.
  • Slogan: A unique phrase or slogan that helps to identify a product or service can be registered as a trademark. For example, the phrase “I’m Lovin’ It” is a registered trademark of McDonald’s Corporation.
  • Color: A specific color or combination of colors can be registered as a trademark. For example, the color pink is a registered trademark of Owens-Corning for fiberglass insulation.
  • Sound: A unique sound or jingle can be registered as a trademark. For example, the NBC chimes are a registered trademark of the National Broadcasting Company.
  • Shape: The distinctive shape of a product or its packaging can be registered as a trademark. For example, the shape of the Coca-Cola bottle is a registered trademark.

Unregistered Trademark

An unregistered trademark is a mark that is used to identify goods or services and is not registered with the national trademark office. It can be any mark, symbol, word, phrase, design, or combination thereof that is used to distinguish the goods or services of one person or company from those of others.

Unlike a registered trademark, an unregistered trademark does not provide the owner with exclusive rights to use the mark. However, the owner can still use the mark to indicate the origin of their goods or services and prevent others from using the mark in a way that would cause confusion among consumers.

The owner of an unregistered trademark can use the symbol “TM” to indicate that the mark is a trademark. This symbol does not provide any legal protection, but it does put others on notice that the owner regards the mark as a trademark and intends to use it as such.

One advantage of an unregistered trademark is that it can be established simply by using the mark in commerce. This means that the owner does not need to go through the registration process and pay the associated fees. However, the lack of legal protection means that the owner of an unregistered trademark may have a more difficult time enforcing their rights if the mark is infringed.

Examples of Unregistered Trademark

Here are some examples of unregistered trademarks:

  • A local bakery that uses a unique logo or name to distinguish its products from those of other bakeries. The bakery may use the symbol “TM” next to the logo or name to indicate that it is a trademark.
  • A small clothing company that uses a distinctive design on its products to create a brand identity. The company may use the symbol “TM” next to the design to indicate that it is a trademark.
  • A freelance writer who uses a particular phrase or tagline to promote their services. The writer may use the symbol “TM” next to the phrase or tagline to indicate that it is a trademark.

Types of Unregistered Trademark

There are several types of unregistered trademarks, including:

  1. Common law Trademark: This type of trademark arises from use of a mark in commerce and provides the owner with limited protection against others using the same or similar mark in the same geographic area.
  2. State Trademark: Some states in the US provide for registration of trademarks at the state level. This provides the owner with some level of legal protection, but only within the state in which the trademark is registered.
  3. Foreign Trademark: An unregistered trademark may have protection in other countries where the mark has been used, even if it is not registered there. This can provide some level of protection against infringement by companies in those countries.
  4. Certification mark: This type of mark is used to indicate that goods or services meet certain standards or have a particular quality. Examples include the “UL” mark for electrical products and the “Good Housekeeping Seal” for consumer products.
  5. Collective mark: This type of mark is used by members of a group or organization to indicate membership and promote their goods or services. Examples include the “Intel Inside” mark used by computer manufacturers and the “Real California Milk” mark used by dairy farmers.

Characteristics of Unregistered Trademark

  • Arises from use: An unregistered trademark is created simply by using a particular mark in commerce to distinguish goods or services from those of others. Unlike a registered trademark, there is no formal registration process required.
  • Limited protection: While an unregistered trademark does provide some level of protection against others using the same or similar mark, the protection is generally limited to the geographic area where the mark is used.
  • Use of “TM” symbol: Owners of unregistered trademarks may use the symbol “TM” next to their mark to indicate that they consider it to be a trademark.
  • No presumption of validity: Unlike a registered trademark, there is no presumption of validity for an unregistered trademark. The owner must prove that they have a valid and enforceable mark.
  • No federal registration: Unregistered trademarks are not registered with the US Patent and Trademark Office (USPTO) and are not subject to the same federal laws and regulations as registered trademarks.
  • Common law protection: Unregistered trademarks are protected under common law, which provides the owner with some level of legal protection against infringement, but not as much as a registered trademark.

Functions of Unregistered Trademark

Here are some of the functions of unregistered trademarks:

  • Distinguishing Goods or Services: Like registered trademarks, unregistered trademarks serve as a symbol that distinguishes a company’s goods or services from those of others. This helps create brand identity and helps consumers recognize and remember the products or services offered by the company.
  • Creating goodwill: Unregistered trademarks help create goodwill for a company, which refers to the value that is added to a business by the reputation it has established. By creating a distinctive brand identity, companies can develop a positive reputation among consumers, which can lead to increased loyalty and sales.
  • Providing some level of legal protection: While unregistered trademarks do not provide the same level of legal protection as registered trademarks, they do offer some level of protection against infringement, particularly within the geographic area where the mark is used. This can help prevent competitors from copying the mark and confusing consumers.
  • Encouraging registration: While an unregistered trademark may provide some level of protection, it is generally recommended that companies seek registration for their trademark to gain maximum legal protection and prevent others from using the same or similar mark. By establishing an unregistered trademark first, companies can gain a better understanding of the trademark registration process and the potential benefits of registration.

Elements of Unregistered Trademark

An unregistered trademark can consist of various elements, such as:

  • Words: Words or a combination of words can form an unregistered trademark. For example, the tagline “Just Do It” used by Nike is a trademark.
  • Designs: Designs, logos, graphics or symbols can also form an unregistered trademark. For example, the Nike swoosh logo is a trademark.
  • Colors: A specific color or combination of colors can form an unregistered trademark. For example, the brown color used by UPS for their delivery trucks is a trademark.
  • Sounds: Unique sounds or musical compositions can form an unregistered trademark. For example, the “Intel Inside” sound is a trademark.
  • Shapes: A specific shape or combination of shapes can form an unregistered trademark. For example, the Coca-Cola bottle shape is a trademark.
  • Smells: Unique smells or fragrances can form an unregistered trademark. For example, the smell of Play-Doh is a trademark.

Important Differences Between Registered and Unregistered Trademark

Here’s a table highlighting the important features and differences between registered and unregistered trademarks:

Features Registered Trademark Unregistered Trademark
Legal protection Provides statutory protection under trademark law Protected under common law
Exclusive rights Provides exclusive rights to use the mark for a period of 10 years, renewable Provides limited protection against infringing use
Use of ® symbol Only registered trademark owners can use the ® symbol with their trademark   Unregistered trademark owners can use the ™ symbol with their trademark
Validity Valid for 10 years, renewable indefinitely No expiration date, but can become invalid if the trademark is not actively used
Geographic scope Provides national-level protection Limited protection within the area of actual use
Litigation Provides stronger legal remedies and easier litigation in case of infringement Litigation can be difficult and costly
Application process Involves filing an application with the trademark office and fulfilling requirements, including payment of fees No formal application process, but registration can be established through use
Cost Typically involves higher costs due to fees and legal representation Lower costs, but may involve expenses related to protecting and enforcing the trademark

Key Difference Between Registered and Unregistered Trademark

Here are key differences between registered and unregistered trademarks:

  1. Evidence of ownership: A registered trademark provides conclusive evidence of ownership of the mark, while an unregistered trademark may require the trademark owner to prove ownership through other means, such as common law usage or evidence of sales and advertising.
  2. Protection against infringement: A registered trademark provides stronger protection against infringement, as it grants the owner the exclusive right to use the mark in connection with the goods or services covered by the registration. In contrast, an unregistered trademark only provides limited protection against infringing use.
  3. Ability to license: A registered trademark can be licensed or assigned to other parties, allowing the owner to generate income from their trademark. Unregistered trademarks may also be licensed, but it may be more difficult to find interested parties due to the lack of statutory protection.
  4. Reputation and goodwill: A registered trademark can help build the reputation and goodwill of a business by protecting the mark from unauthorized use, and may be seen as a sign of quality and credibility by consumers. An unregistered trademark may not carry the same level of prestige or recognition.
  5. Geographic scope: A registered trademark provides national-level protection, while an unregistered trademark may only have protection within the area of actual use or in limited geographic regions where the mark has acquired a reputation or goodwill.

Similarities Between Registered and Unregistered Trademark

Here are some similarities between registered and unregistered trademarks:

  1. Identification of goods and services: Both registered and unregistered trademarks are used to identify and distinguish the goods and services of one company from those of another.
  2. Use of symbols: Both types of trademarks can use symbols to indicate ownership, such as the ® symbol for registered trademarks and the TM symbol for unregistered trademarks.
  3. Common law protection: Both registered and unregistered trademarks can receive protection under common law, which provides some level of legal recourse against infringing use.
  4. Renewal requirements: Both registered and unregistered trademarks require ongoing use to maintain their legal protections. Registered trademarks require renewal every 10 years, while unregistered trademarks require ongoing use to maintain their common law protection.
  5. Importance to businesses: Both registered and unregistered trademarks are important to businesses as they help to establish brand recognition, build customer loyalty, and differentiate products and services from those of competitors.

Conclusion Between Registered and Unregistered Trademark

In conclusion, both registered and unregistered trademarks serve the purpose of identifying and distinguishing the goods and services of one company from those of another. However, the main difference lies in the level of protection they offer to the trademark owner.

Registered trademarks provide stronger legal protection and exclusive rights to use the mark for a period of 10 years, which can be renewed indefinitely. In contrast, unregistered trademarks only receive common law protection and have limited legal recourse against infringing use.

Businesses should carefully consider the benefits and drawbacks of each type of trademark when choosing how to protect their brand. While registered trademarks offer greater legal protection, they also require a longer and more complex application process and ongoing maintenance. On the other hand, unregistered trademarks are simpler and quicker to establish, but may have limited legal recourse and protection.

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