Last updated: January 27th, 2023 10:09 AM

Can you have a trademark without registering?

An individual can have a trademark without registering as in India, 'registration' of a trademark is not compulsory; both registered and unregistered trademarks can be protected against misuse. An "unregistered trademark" has no legal protections. Suppose someone has been using a particular mark for a long time for a specific product or business and has built a good reputation. That mark can be recognised as a trademark without being officially registered under the Trademark Act of 1999. Trademark registration provides your trademark protection under the Trademarks Act, 1999. To register your trademark visit Indiafilings.

Registered trademark

A trademark registered under the Trademarks Act of 1999 is a registered trademark. Trademark registration grants the holder rights to use the mark exclusively in relation to their services or products. The trademark registration is valid for ten years and can be renewed. The registration of a trademark aids in identifying the origin of services and goods and in advertising them. It protects a trader's reputation and keeps the public from purchasing low-quality goods. An individual with a registered trademark ownership has the right to sue others who use a similar or identical trademark. For trademark infringement, both a civil and criminal suit can be filed. On the other hand, unregistered trademarks cannot be sued for infringement.

Unregistered trademark

Unregistered trademarks are those that have not been registered under the Act. Unregistered trademarks may be used in connection with goods and services, but they will not be legally protected under the Act. On the other hand, unregistered trademarks can be protected under common law. Though unregistered trademarks cannot be sued for infringement under the Act, they can be protected under the common law tort of passing off. To succeed in a passing-off action, however, it is necessary to demonstrate that an unregistered trademark has a reputation or comparable goodwill in connection with the goods, business, or services with which it is used.

Difference between Registered and unregistered

• The primary distinction between registered and unregistered trademarks is the level of protection available for registered and unregistered trademarks.
• The first is a statutory remedy, while the second is a common law remedy.
• The infringing mark must be identical or similar to the registered trademark to establish infringement. Unregistered trademarks may be protected where the goods and services have a significant market position. These trademarks are used in trade with which the Indian public is familiar.

Unlike other countries' legislation, trademark registration is not compulsory in India. An unregistered trademark is also protected and has some advantages. On the other hand, an unregistered trademark lacks the statutory right of infringement. The registered trademark, on the other hand, has a statutory right of infringement. As a result of the evidential value and the incentives provided, it is recommended to obtain trademark registration. Unregistered trademarks in India can be protected; there is no mandatory requirement for trademark registration in India for enforcing such common law rights against a violator. Though registering your trademarks provides benefits to secure your trademark. To know about the benefits - Click here.