An unregistered trademark relies on common law rules for ownership rights, but its scope is limited to the product’s distribution area. Registration provides automatic protection in an entire country and is becoming more effective globally, reducing the value of unregistered trademarks.
An unregistered trademark is a unique trademark used to identify goods in commerce. It relies on common law rules of genuine use and territoriality to confer exclusive ownership rights on the mark rather than registration with a government agency. Under common law, an owner of words or symbols that uniquely identify his products on the market automatically has exclusive rights to the mark provided he can prove that he was the first to use it. It is not necessary for the trademark to be registered with a central agency for these rights to be exercisable, but the scope of application of the trademark is limited to the product’s distribution area.
Trademark rights depend on the intellectual property laws of each country. While most countries maintain a central repository of trademark registrations and have established both a registration process and legal remedies for infringement of the law, registration is not required to obtain basic rights. In countries with legal systems based on English common law, an unregistered trade mark is defensible as long as it can be shown to be unique and has been used in trade before any subsequent infringer.
An unregistered trademark has a significant limitation in that trademark rights are generally limited to the trademark’s area of influence. If the trademarked product is only distributed regionally, the right to use the trademark is effective only in that region. The owner of a valid unregistered trademark in one region cannot sue someone for infringement for use of the trademark in another territory where the original owner’s products are not yet distributed. Indeed, the second part would be able to demonstrate the first use in the new territory.
Globalization has greatly diminished the practical value of an unregistered trademark for any product intending to expand its distribution over time. Reliance on common law trademark rights leaves the trademark vulnerable because protection follows distribution, and a skilled infringer can preempt distribution and tie the rights into a trademark in a territory that the product has yet to reach. Registration provides automatic protection in an entire country, whether or not the trademark has been used in commerce in any single region.
The international trend in intellectual property law is to allow trademark registrations in one country to be effective in other countries. This further reduces the value of an unregistered trademark. While a registration can provide nearly worldwide protection for a trademark, there is no reason for a trademark to remain unregistered. Common law rights would simply be a palliative that would provide some protection until an official registration is completed.
Protect your devices with Threat Protection by NordVPN
