What is the difference between a registered and unregistered trademark?
An important means to protect a person or company’s trademark is by registering the name as a trademark with the United States Patent and Trademark Office. (USPTO). Trademarks can be names of products, services, logos, slogans, symbols, packaging, smells and sounds. Indeed, a trademark can be virtually any mark used to identify a particular product or service.
Registration of a trademark is analogous to how a deed works to prove ownership of real property. The registration guarantees the registrant’s exclusive right to use the trademark and a registration, therefore, gives a trademark certain legal presumptions of ownership and strength under the law. Strength of a mark involves how recognizable the mark is in the marketplace and is an important factor in proving trademark infringement against a defendant.
A trademark registration is considered direct and prima facie evidence of exclusive ownership. It enables the registrant to more easily fend off a challenge to the ownership or prior use of a trademark because it shifts the burden to the party contesting the owner’s registration.
A federal registration, however, is not required to own a trademark. A party that uses a particular name for a company or product also has certain common rights to use a trademark, but common law rights do not carry the presumptive rights for nationwide use that come with a federal registration. It, therefore, is recommended that any trademark with value, or potential value, be registered with the USPTO.
Please Note: McCabe Rabin, P.A. provides these FAQ’s for informational purposes only, and you should not interpret this information as legal advice. If you want advice as to how the law might apply to the specific facts and circumstances of your case, please contact one of our attorneys.