How to Report the Use of an Unregistered Trademark

By Louis Kroeck

Unregistered trademarks are granted a limited set of common law rights. They don't enjoy the same level of protection afforded to trademarks registered under state or federal law, but you can still take steps to protect your unregistered trademark. Because of the nature of trademark enforcement, no authoritative body oversees issues related to unregistered trademark infringement or dilution.

Unregistered trademarks are granted a limited set of common law rights. They don't enjoy the same level of protection afforded to trademarks registered under state or federal law, but you can still take steps to protect your unregistered trademark. Because of the nature of trademark enforcement, no authoritative body oversees issues related to unregistered trademark infringement or dilution.

Identifying Your Mark

The holder of an unregistered trademark is not required to identify the mark with any type of notation. However, you should identify your unregistered trademark to notify third parties that you are asserting rights to the mark and you are serious about enforcement. It is unlawful to identify an unregistered trademark with the ® symbol, which is reserved for formally registered trademarks. Instead, you should use the ™ symbol to denote an unregistered trademark.

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Your Rights

Unregistered trademarks are granted protection under common law doctrine. Rights in an unregistered trademark are asserted through continuous use of the mark in commerce. An unregistered mark can only be protected in the geographic area in which it has been used. Therefore, if someone is using your mark outside of your business locale, you will have no recourse for protecting your mark.

Enforcing Trademark Rights

Trademark rights, including rights in unregistered marks, are not enforced by contacting any single authority to report unauthorized use of the mark. Trademark holders must independently protect their marks by monitoring for unauthorized use. If such use is detected, you notify the infringing parties by sending a "cease and desist" letter requesting that they stop using your unregistered trademark.

Enforcing Unregistered Marks

If the infringing party does not comply with your cease and desist letter, you may protect your unregistered mark by filing a lawsuit for trademark infringement in your state court. Your lawsuit will need to notify the court how long you've been using the mark and how the other party is infringing on your rights. Because an unregistered trademark is only granted protection within a limited geographic area, any infringing use outside of this geographic area will not be enforceable. A third party who files for federal registration of your unregistered mark, even after you've been using it, may be granted the right to use that mark in all geographic areas other than the limited area where your common law rights exist.

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Registered vs. Unregistered Trademark

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Enforcing A Trademark

Trademark law grants a monopoly on the use of a word, phrase, symbol or design that distinctively identifies a product used in commerce. You can protect your trademark locally by using it in commerce before anyone else does. You can protect it nationally by registering it with the U.S. Patent and Trademark Office. It is also possible to protect your trademark internationally. You are entitled to sue an infringing party and collect damages.

Why Have a State Trademark?

Business owners have the ability to register for state trademark protection instead of, or in addition to, federal trademark registration. State registration protects an owner's intellectual property rights in his mark within the boundaries of the state. For a business owner with no plans to expand beyond the boundaries of one state, a state trademark prevents other businesses from using a similar logo or slogan.

What Is a Trademark's Duration?

A trademark identifies a particular manufacturer of goods, using a particular phrase, design or symbol. Designs, words or symbols used to identify a provider of services are called service marks, although there is no practical legal difference between trademarks and service marks. The mark ensures consumers can easily identify a particular company as the source of a product, and encourages brand loyalty. It also distinguishes and sets apart a particular company’s goods and services from others. This encourages companies to maintain consistent quality standards in the goods and services they produce. In some cases, trademark protection extends beyond words or symbols, encompassing "trade dress." For example, if a fitness drink company packaged its drinks in unique, triangle-shaped bottles, that shape would be entitled to trademark protection.

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