How to Assert a Trademark if it is Not Registered

By Brenna Davis

A trademark is a distinctive phrase, word or symbol used to represent your business in commerce. Trademarks are registered through the U.S. Patent and Trademark Office, and are primarily protected under federal law. However, many states provide common law causes of action to defend trademarks. Unregistered trademarks receive less protection than those that have been registered, particularly if the trademark owner has not yet applied for trademark protection. However, you may complete a trademark application at any time to begin receiving the protection of a registered trademark.

Step 1

Conduct a trademark search using the USPTO's Trademark Electronic Search System. If someone else has already registered your trademark, you may not register it. If a registered trademark is very similar to the one you want to register, you may want to alter your trademark. If, however, you have been using your trademark in commerce for many years, you may be able to assert ownership by right of first use. This may require the assistance of a trademark attorney.

Step 2

Use your trademark frequently in commerce on the items that you plan to use the trademark on after registration. For example, if you are registering a trademark to use the mark on clothing, you should use it frequently on clothing. Use the "TM" symbol next to your item; this symbol denotes an unregistered trademark. You should also use this symbol after you file your trademark application until your trademark is accepted. Early and frequent use affords your trademark more protection, particularly if someone else has already registered a similar trademark or attempts to do so after you register your trademark.

Protect your brand. Register My Trademark Now

Step 3

Notify anyone who steals your trademark that the mark is trademarked. Send a "cease and desist" letter itemizing how long the trademark has been used in commerce and enclosing a picture of your trademark in commerce as well as the other person's use of your trademark. If you have not completed a trademark application, you may need a trademark attorney to help you assert your rights. If, however, you have completed an application and are merely awaiting trademark approval, you will have more protection.

Protect your brand. Register My Trademark Now
How Do I Know If I'm Violating a Trademark?



Related articles

Trademark Owner's Responsibilities

Holding an official trademark registered with the federal government gives you the right to exclusively use your mark, but it does not come without responsibility. If you have a trademark registered by the U.S. Patent and Trademark Office, there are ongoing requirements to meet in order to maintain and enforce its exclusive use.

Pros & Cons of Provisional Patent Application

When an inventor says that he has a "patent pending," it can mean that he has a provisional patent. Inventors who are low on funds or need a patent in a hurry often obtain a provisional patent. Although an application of a provisional patent is easier to file than one for a full utility patent, the provisional patent is only a step in the direction of obtaining a full patent and is not an end in itself. After one year, the provisional patent is discarded if you do not file for a full patent. While saving money and time are advantages of provisional patents, you should also be aware of possible pitfalls and how to avoid them.

Checklist for Getting a Patent

Coming up with a brilliant invention can be exciting. Among the most important steps you'll want to take right away is applying for a patent. A patent will protect your invention and keep others from making the same thing and profiting from it. You'll want to start the process early because if someone else has created something similar, the decision on who gets the patent might be based on who created it first or applied first.

File a Trademark Online. LegalZoom. Learn More.

Related articles

How to Trademark a Product Before It Exists

The only way to establish trademark rights is to actually use the trademark in commerce. If your product is not ready ...

How Long Is a Trademark Valid?

Trademarks protect distinctive brand words, phrases, symbols or designs from unauthorized use by others. Trademark ...

How to Copyright a Workbook

Copyright offers protection to intellectual property fixed in tangible items such as books. Most workbooks can be ...

How to Trademark a Shape

A trademark is phrase, symbol or design element that identifies the brand of a product or service. Unlike a copyright ...

Browse by category
Ready to Begin? GET STARTED