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How to Protect an Unregistered Trademark

Protect a trademark
without registering it
via common law

Trademarks can be legally protected in several ways:

  • via federal registration with the US Patent and Trademark Office (USPTO)
  • via registration with state trademark offices
  • via registration with trademark offices in foreign countries
  • via common law

An unregistered or common-law trademark can be, like a registered trademark, a word, phrase, symbol, or other indicator used to signify or distinguish a product or service.

The owner of an unregistered trademark may (but isn’t required to) use the letters “TM” after the mark to indicate that a trademark is claimed.

The mark (R), on the other hand, shows that a trademark has been granted by the USPTO. It’s illegal to use the (R) mark when a federal trademark hasn’t in fact been granted.

An unregistered trademark doesn’t receive the same level of legal protection as a registered trademark.

For example, a US registered trademark can be enforced anywhere in the US. The trademark holder can seek damages for infringement (including lost profits) and attorney’s fees.

A state-registered trademark can be enforced anywhere in the state where it’s registered.

Common-law trademarks, on the other hand, can only be enforced within the geographic area where they’re being used. The common-law trademark owner can seek an injunction to prevent someone else from using the mark but (depending on state law) may not be able to recover damages for infringement or attorneys’ fees.

In order for a common-law trademark to be protected, the owner must usually be able to show:

  • Sale of goods with the mark, or
  • Advertising and providing services in connection with mark

Merely using a mark on a website isn’t enough to show that goods or services are actually being provided.

However, even a very minimal sale can qualify as “use” of a common-law mark.

For example. in Christian Fellowship Church v Adidas AG, a 2016 decision from the Federal Circuit, the court held that the sale of two hats for $38.34 was enough to show that a common-law mark was being used in commerce.

Thus, a common-law trademark owner who wants to improve the chances of protecting the mark from competing users might want to actually manufacture and sell goods using the mark, even in small quantities.

Federal registration remains the “gold standard” for trademark protection, but common law can provide a measure of protection for unregistered marks.

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