Registered vs. Unregistered Trademarks: Which One Do You Need?
As a trademark attorney, I have worked with many businesses to help them understand the importance of trademarks and how they can protect their brands. One of the most common questions I get from clients is whether they should register their trademark or if an unregistered trademark is good enough. The answer depends on your goals, the type of business you run, and the level of protection you want. Let me walk you through the differences between registered and unregistered trademarks, and why each option might be right for you.
What is a Trademark?
Before diving into the specifics, let’s quickly talk about what a trademark is. A trademark is a word, phrase, logo, or symbol that identifies and distinguishes the goods or services of one company from those of others. Trademarks are important because they help build brand recognition and trust. They also protect businesses from competitors who might try to confuse customers by using similar marks.
There are two types of trademarks that you might come across: registered and unregistered. Each type offers a different level of protection, and it’s important to understand both before deciding which one is right for you.
Unregistered Trademarks: What Are They?
Unregistered trademarks are marks that you use in commerce without officially registering them with the United States Patent and Trademark Office (USPTO). These types of trademarks are also known as “common law” trademarks because they are protected by common law, which is a body of law developed through court decisions rather than through legislation.
When you use a trademark in commerce, you are automatically granted some level of protection. This means that no one else can use a confusingly similar mark for the same or similar products or services in your geographic area. However, the protection of an unregistered trademark is limited in several important ways.
The Advantages of Unregistered Trademarks
Immediate Use: You don’t need to wait to use an unregistered trademark. As soon as you start using it in commerce, it is protected under common law. This can be especially useful for small businesses or startups that need to get their brand out there quickly.
Cost-Effective: Registering a trademark with the USPTO comes with filing fees and other costs. If you’re just starting out and need to keep expenses low, using an unregistered trademark might make more sense. There’s no need to pay for the registration process unless you feel it’s necessary.
Flexibility: With unregistered trademarks, you have the freedom to change or modify your mark as you see fit without dealing with the formalities of the registration process. If you decide you don’t like your logo or name after a few months, you can easily make adjustments.
Simplicity: If you have a local business that operates in a limited geographic area, using an unregistered trademark may be enough. If your brand is small and localized, the risks of infringement may be lower, and the protection offered by common law may suffice.
The Disadvantages of Unregistered Trademarks
While unregistered trademarks do offer some protection, there are also significant drawbacks.
Limited Geographic Protection: Common law trademarks only provide protection in the area where your mark is used. If you expand your business to other regions, you may find that another business already owns a similar trademark in that area, even though you’ve been using the mark longer in your region.
Weaker Legal Standing: If someone else challenges your unregistered trademark, you will have a harder time proving ownership and defending your rights in court. Unlike registered trademarks, you don’t have a public record to show that you were the first to use the mark, which could hurt your case in legal disputes.
No Exclusive Nationwide Rights: With an unregistered trademark, you only have the right to prevent others from using a similar mark in your geographic area. You can’t stop others from using a similar mark in different parts of the country. In contrast, a registered trademark gives you nationwide protection.
Difficult to License or Sell: Unregistered trademarks are harder to license or sell. A potential business partner or buyer may be hesitant to invest in an unregistered mark because it doesn’t come with the security of nationwide protection.
Registered Trademarks: What Are They?
A registered trademark is a trademark that has been officially registered with the United States Patent and Trademark Office (USPTO). When you register your trademark, you are granted exclusive rights to use that mark for your goods or services, and you can stop others from using a confusingly similar mark in the entire United States.
Registration involves filing an application with the USPTO and paying a filing fee. If your application is approved, you receive a registered trademark, and you are listed in the USPTO’s public records as the official owner of that mark.
The Advantages of Registered Trademarks
Nationwide Protection: Once registered, your trademark is protected throughout the entire United States, not just in the area where you are using it. This is a major advantage if you plan to expand your business beyond your local area.
Stronger Legal Standing: Registered trademarks are easier to defend in court. The registration provides public notice of your ownership, and it serves as evidence of your exclusive rights to the mark. If someone infringes on your trademark, you have a much stronger case for legal action.
Increased Credibility and Trust: Registering your trademark can boost your brand’s credibility. Consumers are more likely to trust a business with a registered trademark because it shows that the business is serious about protecting its brand and its reputation.
Ability to License or Sell: Registered trademarks are easier to license or sell. Having a registered mark makes it more attractive to potential business partners, investors, or buyers because they can see that the mark is legally protected and recognized nationwide.
Use of the ® Symbol: Once your trademark is registered, you can use the ® symbol to indicate that your mark is a registered trademark. This can deter competitors from using similar marks and can signal to consumers that your brand is legally protected.
The Disadvantages of Registered Trademarks
Cost: Registering a trademark comes with a cost. You have to pay a filing fee to the USPTO, which can range from $250 to $350 per class of goods or services. Additionally, there may be legal fees if you hire a trademark attorney to help you with the application process.
Time: The registration process can take several months, sometimes up to a year or more, depending on various factors such as the complexity of your application or potential legal challenges. During this time, you might not have full protection under the registered trademark.
Ongoing Maintenance: Once your trademark is registered, you need to maintain it. This means filing periodic maintenance documents and paying fees to keep your registration active. If you fail to do so, your trademark may be canceled.
Which One Do You Need?
Deciding whether to use a registered or unregistered trademark depends on your business goals. If you are a small, local business with a limited geographic footprint, an unregistered trademark may be sufficient. However, if you plan to expand your business or want stronger legal protection for your brand, registering your trademark is a smart investment.
In many cases, businesses start with an unregistered trademark, especially if they are in the early stages of development. But as the business grows and the brand becomes more valuable, registering the trademark often becomes a priority. By doing so, you ensure that your brand is protected on a national level, giving you the legal tools you need to defend your intellectual property.
Ultimately, whether you go the registered or unregistered route, it’s important to remember that protecting your trademark is essential for building a strong brand. Whether you take the formal step of registration or rely on common law protections, taking action to safeguard your brand will help ensure its success in the long run.
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