Difference between Registered and Unregistered Trademark
A trademark is a word, logo, symbol, pattern, or phrase that distinguishes its proprietor’s goods and services from those of others. Trademarks are governed by the trademark act 1999. Act provides for the registration of trademarks but it is not mandatory to do so.
A registered trademark offers more benefits than an unregistered one. In this blog, we will get brief about these two, and which one is better.
Registered Trademark
According to the Trademark Act of 1999, a registered trademark is a symbol or sign that distinguishes the goods or services of one business from those of another. It is a unique identification mark that legally belongs to a business or an individual and cannot be used by any other party without their permission.
To register a trademark under the Trademark Act 1999, the trademark must fulfill certain criteria, such as being distinctive, not being offensive or prohibited, and not being similar to an existing registered trademark. Once a trademark is registered, the owner of the trademark has the exclusive right to use it and can take legal action against any person or entity that uses the trademark without their permission.
Registration of a trademark provides legal protection to the owner and helps in building brand recognition and trust among customers. The registration of a trademark is valid for ten years, after which it can be renewed for successive periods of ten years.
Unregistered Trademark
According to the Indian Trademarks Act, 1999, an unregistered trademark refers to a mark that is used in relation to goods or services but has not been registered with the Indian Trademark Registry.
Unregistered trademarks are protected under common law and the law of passing off. This means that if an unregistered trademark has acquired a reputation and goodwill among consumers, the owner of the trademark can prevent others from using a similar or identical mark in a way that would mislead consumers into believing that they are buying goods or services from the owner of the original trademark.
However, the protection offered to unregistered trademarks is limited compared to registered trademarks, which enjoy statutory protection and are easier to enforce. Registered trademarks offer exclusive rights to the owner, and infringement of a registered trademark is a statutory offense. In contrast, owners of unregistered trademarks must rely on common law and passing it off to protect their rights, which can be more difficult and time-consuming.
Registered trademark Vs. Unregistered trademark
| Basis of difference | Registered trademark | Unregistered trademark |
| Definition | A trademark that has been registered with the Indian Trademark Registry | A trademark that is used in relation to goods or services, but has not been registered with the Indian Trademark Registry |
| Protection | Statutory protection under the Trademarks Act, 1999 | Protected under common law and the law of passing off |
| Exclusive rights | Exclusive rights to use the trademark for the goods or services it is registered for | Limited rights to prevent others from using a similar or identical mark in a way that would mislead consumers |
| Infringement | Infringement of a registered trademark is a statutory offense | Infringement of an unregistered trademark is a common law offense, and the burden of proof lies with the owner of the trademark |
| Duration of protection | 10 years from the date of registration, renewable indefinitely | Protection is for as long as the trademark is in use and has acquired a reputation and goodwill among consumers |
Why you should consider registering your trademark?
Registering a trademark under the Indian Trademarks Act, 1999 provides several benefits and advantages to the owner of the trademark. Here are some reasons why you should consider registering your trademark:
- Exclusive rights: Registering your trademark gives you exclusive rights to use the mark in connection with the goods or services you have registered for. This means that no one else can use a similar or identical mark in relation to the same or similar goods or services, thereby protecting your brand and business reputation.
- Statutory protection: Registered trademarks enjoy statutory protection under the Trademark Act, 1999. This means that you can take legal action against anyone who infringes your trademark, and you can also prevent others from using a similar or identical mark without your permission.
- National protection: A registered trademark provides national protection throughout India, which is particularly important if you are doing business across multiple states.
- Easy enforcement: Enforcing a registered trademark is easier and more effective than enforcing an unregistered trademark. The owner of a registered trademark can seek relief through the courts, including injunctions and damages.
- Asset value: A registered trademark can be a valuable asset to your business, as it can be licensed, sold, or assigned to others, providing a potential source of revenue.
- Brand recognition: Registering your trademark can help you build brand recognition and brand value over time, as consumers begin to associate your mark with your goods or services.
Advantages of a registered trademark
There are several advantages of having a registered trademark under the Indian Trademark Act, 1999, which include:
- Legal Protection: A registered trademark gives the owner exclusive legal protection and the right to prevent others from using a similar or identical trademark in relation to the same or similar goods or services. This legal protection is backed by statutory law and can be enforced in the court of law.
- Nation-wide Protection: A registered trademark provides protection throughout India. This is important if you are conducting business across multiple states.
- Asset Value: A registered trademark can be a valuable asset to your business, as it can be licensed, sold, or assigned to others, providing a potential source of revenue.
- Brand Recognition: A registered trademark helps in building brand recognition and brand value over time, as consumers begin to associate your mark with your goods or services.
- Legal Remedies: A registered trademark provides the owner with legal remedies against infringement, including injunctions, damages, and account of profits. It also allows the owner to initiate legal proceedings against infringers and counterfeiters.
- Exclusive rights: A registered trademark gives the owner exclusive rights to use the trademark for the goods or services it is registered for. This helps in establishing a unique identity for the business and helps in preventing others from copying or imitating the brand.
Disadvantages of a registered trademark
While there are several advantages of having a registered trademark under the Indian Trademark Act, 1999, there are also some potential disadvantages, including-
- Cost: Registering a trademark involves fees, and the cost of registration can be higher than that of an unregistered trademark. The cost of maintaining the trademark registration also needs to be considered.
- Time-consuming: The registration process can be time-consuming, and it can take several months to a few years for the trademark to be registered. This can be a disadvantage for businesses that need to establish their brand quickly.
- Limited protection: A registered trademark only provides protection for the specific goods or services it is registered for. This means that if someone else uses a similar or identical trademark for different goods or services, it may not be considered an infringement.
- Renewal requirements: A registered trademark must be renewed periodically, and failure to do so can result in the loss of protection. This can be a disadvantage for businesses that do not maintain their trademark registrations properly.
- Enforcement: While a registered trademark provides legal remedies against infringement, enforcing these rights can be difficult and expensive. The owner of a registered trademark may need to take legal action against infringers, which can be time-consuming and costly.
- Risk of cancellation: A registered trademark can be cancelled if it is not used for a continuous period of five years. This can be a disadvantage for businesses that do not use their trademarks regularly or consistently.
Advantages of unregistered Trademark
Some potential advantages of using an unregistered trademark in India include:
- Lower costs: Registering a trademark can be a lengthy and expensive process. By using an unregistered trademark, a business can avoid the costs associated with filing and maintaining a registered trademark.
- Immediate protection: Unlike registered trademarks, which can take several months or more to be approved and registered, an unregistered trademark can provide immediate protection from infringement. If another business uses a similar mark in a way that is likely to cause confusion, the owner of an unregistered trademark can take legal action to stop the infringement.
- Flexibility: An unregistered trademark can be used to protect a wide variety of marks, including names, logos, slogans, and even trade dress (the overall appearance of a product or packaging). This flexibility can be particularly useful for businesses that may not have a distinctive logo or name.
- Wider scope of protection: Under the Indian Trademark Act, 1999, unregistered trademarks are protected against not only identical or deceptively similar marks, but also against marks that are likely to cause confusion or are detrimental to the reputation of the trademark owner.
Disadvantages of unregistered Trademark
Some potential disadvantages of using an unregistered trademark in India include:
- Limited protection: Unregistered trademarks are protected under common law, which means that the protection afforded to the owner of the mark is limited to the specific geographic area where the mark is being used. If the owner of an unregistered trademark wants to expand their business into new territories, they may need to register their mark to obtain nationwide protection.
- Burden of proof: Unlike registered trademarks, which are presumed to be valid and enforceable, the owner of an unregistered trademark may have to prove that they have acquired a reputation in the mark in order to establish their rights to the mark. This burden of proof can be difficult and expensive to meet, especially if the owner of the mark is not well-established in their industry.
- Limited remedies: The remedies available to the owner of an unregistered trademark in the event of infringement are more limited than those available to the owner of a registered trademark. For example, the owner of an unregistered trademark may not be able to recover damages for infringement, and may only be able to obtain an injunction to stop the infringing activity.
- Lack of priority: If two businesses are using the same or similar marks, the owner of the unregistered trademark may not have priority over the owner of the registered trademark. This means that if the owner of the registered trademark decides to register their mark, the owner of the unregistered trademark may be forced to stop using their mark or risk infringing on the registered trademark.
Conclusion
In summary, a trademark is a unique identification mark that legally belongs to a business or individual and distinguishes its goods or services from those of others. A registered trademark offers statutory protection, exclusive rights, and legal remedies against infringement for ten years, renewable indefinitely. On the other hand, an unregistered trademark is protected under common law and the law of passing off and has limited rights to prevent others from using a similar or identical mark in a way that would mislead consumers.
However, the protection offered to unregistered trademarks is more difficult and time-consuming to enforce. It is recommended to consider registering a trademark under the Indian Trademarks Act, 1999, as it provides several benefits, including exclusive rights, statutory protection, national protection, easy enforcement, asset value, and brand recognition.
Frequently Asked Questions (FAQ)
1.Can I register a trademark internationally?
Yes, you can register a trademark internationally through the Madrid System. This system allows trademark owners to file one application to protect their marks in multiple countries.
2. How long does it take to register a trademark in India?
It takes approximately 6 to 24 months to register a trademark in India.
3. What can I do if someone infringes on my trademark?
You can take legal action against the infringer, including sending a cease and desist letter, filing a lawsuit, or seeking mediation or arbitration.
4. Can I trademark a slogan or a logo?
Yes, slogans and logos can be trademarked if they are unique and distinguish your goods or services from those of others.
5. Do I need a lawyer to register a trademark?
While it is not necessary to hire a lawyer to register a trademark, it is recommended as the process can be complex, and a lawyer can provide guidance and ensure that your application is filed correctly.
