A Trademark helps to differentiate goods or services. It gives
an identity to products and services. It gives the right to ownership of such
products and services. The question is whether only a registered trademark
gives the ownership right? Or an unregistered trademark holder also owns such
rights and to what extent? The difference between unregistered and registered
trademark will help to clarify.
What is an unregistered
Any mark such as a word, symbol, logo, device that gives identity
to goods or services but is not registered with the Trademark Act is an
unregistered trademark. Unregistered trademarks have limited rights of
protection as compared to registered trademarks. It does not have infringement
rights but is protected under common law. They can prevent others from using a
similar trademark under the law of Passing off.
What is a registered
Any brand name or logo registered under the Trademark Act is a registered trademark. Registering a trademark will add value to products and services. Such trademark is an asset of the owner. It has a statutory right against infringement. It is always better to have a registered trademark. The validity of a registered trademark is 10 years from the date of application. The owner has to renew it every 10 years.
The difference can be further understood from the following:
A registered trademark is valid all
over India. There is no need to prove its existence or goodwill in the market.
But in unregistered trademark, one has to prove its noteworthy existence in the
market. It helps to claim the goodwill of the brand name. Also, they are
limited to a particular city or region only, since they are not well known
enough. Hence it is difficult to prove their valuable existence outside their
Both registered and unregistered trademark get different protection under a different law. One of the advantages of registered trademark is that it is protected under the Trademark Act. Further, the registration of a trademark is valid for a class or classes within which it is applied. Hence the protection is available in such a particular class or classes. So no one else can use a similar brand name for any goods or services of the same class. While in unregistered trademark the person is not protected for any particular products or services. Hence there is a possibility of usage of similar brand name for the same products or services. Hence the chances of taking illegal benefit of other’s brand name are higher.
C. Right to sue others
A registered trademark owner can sue
any person for using their trademark. It must be used in the ordinary course of
business. In unregistered trademark, the owner can take protection under common
law, where the burden of proof is more. The owner of an unregistered trademark has
to prove how the use of a trademark by the other person causes damage to the
goodwill of their products or services. If unable to prove it, then one cannot
claim such a trademark.
D. Use of sign
If the trademark is registered then
the owner can use the “Ò” symbol on its brand name. It increases the authenticity of
products and services. Such products or services will be considered as products
or services with quality. The unregistered trademark can use the “Ô” symbol on its brand name. It shows that the brand is not registered and
it does not have any legal protection.
The differences mentioned above will ensure a proper decision
whether to register a trademark or not. An unregistered trademark does not have
any statutory right. Hence a registered trademark is always advantageous.