An unregistered trademark (also known as a common law trademark) is protectable under Section 43 of the Trademark (Lanham) Act (15 USC §1125). ... Therefore, to sue for infringement of an unregistered trademark, the rights holder must prove that it owns a valid trademark.
Does the Lanham Act protect unregistered trademarks?
Unregistered marks are protected under Section 43(a) of the Lanham Act, which is designed to prevent consumer confusion as to the source, sponsorship or affiliation of a product or service.
What is the Lanham Trademark Act?
§§ 1051 et seq., was enacted by Congress in 1946. The Act provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.
What are the limitations to only having common law protection for trademarks?
Geographic limitation of common law marks
Common law trademark rights are limited to the geographic area in which the mark is used. Thus, if a coffee blend is sold under the name BLASTER in California only, the trademark rights to that name exist only in California.
Can you sue for trademark infringement without registration?
Under federal law, you are not required to register your trademark to obtain formal legal protection—meaning you can still sue for infringement even without registration. ... Indeed, federal law allows for a trademark infringement claim even without registration (15 U.S.C. § 1125(a)).
What if trademark is not registered?
An unregistered trademark is also protected and has certain benefits. However, an unregistered trademark does not possess the statutory right of infringement. However, the registered trademark possesses a statutory right of infringement.
Can you use TM without registering trademark?
The (TM) symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it. The most common use of the TM symbol is on a new phrase, logo, word, or design that a company plans to register through the USPTO.
What is considered trademark infringement?
Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services. ...
How long does trademark protection last?
How long does a trademark last in the US? In the United States, a federal trademark can potentially last forever, but it has to be renewed every ten years. If the mark is still being used between the 5th and the 6th year after it was registered, then the registration can be renewed.
Who can sue under the Lanham Act?
1. Who can sue and be sued for false advertising under the Lanham Act? Generally, companies that are in commercial competition with one another may sue or be sued, no matter the industry or field.
Which countries recognize common law trademark rights?
Countries that recognize some form of common law trademark rights include the US, the United Kingdom (UK), Australia, Canada and India. Assessing the availability of a trademark may involve searching and analyzing trademark use and registration data from a variety of sources, including: ∎ National trademark registries.
Can you license a common law trademark?
Your common law trademark rights begin when you start using the mark in commerce in a particular geographical area. The first person to do this—as opposed to the first person to register with the United States Patent and Trademark Office (USPTO)—owns the common law rights to the mark in that area.
What is common law trademark rights?
A common law trademark is a trademark established solely through use in commerce in a specific geographical area. Business names, logos, and phrases that are regularly used–even though they have never been federally registered–can all be considered common law trademarks.
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