What are Unregistered Trademarks: Know How to Protect Them?

A trademark is a unique logo, symbol, phrase, or mark. It is adopted by an organization to differentiate their services and goods from others. Trademarks in India are governed by The Trademark Act, of 1999. Let us know more about unregistered trademarks.

Trademark Registration is done as per the provisions of the Trademark Act. Getting a Trademark is mandatory but registering it is not. Thus, any individuals or organizations may get their trademark registered or go with unregistered trademarks.

What are unregistered trademarks?

Trademarks that are not registered under the Trademark Act are considered unregistered trademarks. They will not possibly have any legal benefits under the Act. But they can be used concerning goods and services. Also, they can be protected under common laws if not registered.

However, Infringement cases cannot be filed for unregistered trademarks under the act. They can be protected from infringement with common laws if they are reputed. Positive image in goods and services or business is also included as required condition. The owner of Unregistered trademarks can use TM symbol.

Proving the goodwill of an non-trademark depends on the owner’s liability. It can be protected after earning its reputation from the public. So, the owner must provide proof of usage for using similar registered trademarks. Also, in case of disputes proof is required from the owner’s side.

How to protect Unregistered Trademarks?

In India, they have rules based on common ways, not just written ones. Which means you can go legally for trademark issues like imitating or copying.

Section 5(4)(a) of the Trademark Act 1994 protects an unregistered trademark. It also has legal protection under sections 34 and 35 of the Trademark Act 1999. These sections declare that if anyone uses a trademark before others, they have priority. Even if the brand is registered later.

One more Clause of the Trademark Act i.e. Section 135 identifies passing off and infringement proceedings. If a brand is too similar for the one which is not registered, the second one can’t be registered in India under Section 11(3) of the law.

Trademark infringement and Unregistered Trademarks

The Trademark Act recognizes both registered and unregistered trade marks in the same way. On the other hand, unregistered trade marks cannot be sued for infringement cases. And there is no compensation for the infringement of unregistered trade marks. Also, one cannot sue for the unauthorized use of an unregistered trademark.

Trademarks that haven’t been registered are not eligible for lawsuits under the act. But it doesn’t stop you from taking legal action where you still can get a solution. Common laws can protect unregistered trademarks if they are successful and recognized. It should be popular and reputable in the eyes of the public.

What are the disadvantages of unregistered trademarks?

A trademark is mandatory for any business to get its own unique identity. But registered or unregistered is left for the user. Unregistered trade marks are having more side effects than registered trademarks. It is advisable to get your trademark registered rather than leaving it unregistered.

Diadvantages of Unregistered Trademarks

So, let us discuss some disadvantages of unregistered trademark.

  1. One prominent demerit of an unregistered trademark is not getting statutory benefits. It can’t be sued for trademark infringement under section 27 of the act.
  1. The owner must face the consequences of not having proof of authority. Unregistered trade marks cannot protect the legal ownership of their intellectual property.
  1. The owner must provide evidence if there is any dispute over owning the trademark without registration.
  1. An unregistered trademark would fail to get brand recognition unless it’s in a few regions.
  1. The “R” symbol cannot be used by an unregistered mark. However, the TM symbol must be used to imply that the mark is not registered.

Conclusion

Trademark registration is not really required in India. It is certain that unregistered trademark also has some legal protections. But those are not comparable with the rights that registered trademarks have.

Registering a Trademark gives a right of control over the specific mark in a specific region. It helps to prevent the unauthorized use of trademarks by others. It flourishes and grows business along with the country’s economy.

So, it is better to have registered trademarks than unregistered one. Registration acts as a shield for your intellectual properties.

FAQs
1. What is an unregistered trademark?

Unregistered trademarks refer to those that have not undergone registration according to the Trademark Registration Act. Protection for an unregistered trademark is granted under Section 5(4)(a) of the Trademarks Act of 1994. The act of safeguarding an unregistered trademark is commonly referred to as passing off.

2. Can unregistered trademarks be protected?

Yes, but under certain conditions. Some common laws protect unregistered trademarks if the marks are reputed. However, they can’t be protected as same as registered trademarks are protected.

3. What is the major disadvantage of an unregistered trademark?

The main disadvantage of not registering the trademark is getting deceived by legal protection.

4. Is trademark registration mandatory in India?

No, trademark registration is not mandatory in India. However, registering a trademark is recommended to get legal protection.

5. What are the trademarks not registerable?

Marks that are ineligible under the Trademark Act include those that cause confusion or deception among the public. Additionally, marks containing content offensive to the religious sentiments of any group of Indian citizens are not acceptable.

6) What are 4 trademarks?

The four types of Trademarks are generic, descriptive, suggestive, and Arbitrary.

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