That means that as soon as you start selling a product or service, you can claim common law ownership of that trademark without formally registering it with the U.S. In the U.S., a business gets common law rights to a name as soon as it is used in commerce. Incontestability can be helpful because it means that a trademark can no longer be attacked for simply being descriptive, even if it is merely descriptive.For the new business that is just starting out, a common question is, “When is the right time to file a trademark application?” Should business owners bother registering before their product or service is ready, or just wait until they’re ready to officially launch to the marketplace? ![]() These advantages include the right to bring a lawsuit against an infringer in federal court, incontestable status after five years of registration, presumption of ownership, enhanced remedies, and constructive notice of ownership to others around the nation. ![]() However, there are numerous advantages to registering a trademark that you have used in interstate commerce. A famous unregistered trademark can be protected from dilution. Specifically, it is considered unfair for somebody to trade on the goodwill you have built up around a mark in order to sell competing goods or services. The laws surrounding unregistered marks are derived from principles of unfair competition or unfair business. However, the filing date of a registration is considered constructive use of a mark, and it gives priority over a later date of actual common law use in commerce if the registration application results in a registration. This means that you can get trademark rights limited by territory even if you are a tiny, lesser-known business with an unregistered trademark. Instead, the date on which a mark was first used determines the right of priority to the mark. You can bring the lawsuit in federal court only if the infringer lives in a different state and the amount in controversy is more than $75,000, or if your case depends on interpreting the Lanham Act or other federal law.īeing the first person to file an application to register a trademark does not guarantee that you will get priority over the trademark. If you want to bring a lawsuit, however, you will have to prove that your mark is a valid trademark, usually only in state or local courts. This means you can send a cease and desist letter to try to stop someone from using the trademark without your license. A trade name for your business is not the same as an unregistered trademark and is not given the same protections under federal trademark law.Īlthough the range of protection is limited to the region where you use your unregistered trademark, you can protect an unregistered but valid trademark from infringement and dilution under common law. You can claim trademark rights in your unregistered trademark as long as it is distinctive and identifies or distinguishes your products or services. This means you may be able to stop a subsequent user of the mark, even if it is a bigger company, from using the mark in your geographic area only. ![]() If you do not register your trademark, you will have legal rights only within the geographic areas where you operate. ![]() Unregistered trademarks may still be protected by common law and unfair competition laws.
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