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Know the Differences & Comparisons

Difference Between Registered and Unregistered Trademark

Last updated on May 16, 2019 by Surbhi S

registered vs unregistered trademarkThere is a slight but significant difference between registered and unregistered trademark which lies in the protection provided by the registration. As the name suggests, a registered trademark is one which is registered, so it enjoys several rights and benefits, which are not available to the unregistered trademark.

Trade Mark refers to intellectual property, that ensures protection to the owner of the mark, with respect to the exclusive right to use it, or to authorize another person/entity, to use the trademark with the permission of the owner for adequate consideration. It is something that identifies the original source of goods.

The trademark can be a signature, logo, design, name, numerals, label, etc. which is often represented by a ® symbol in case of a registered trademark and ™ when the trademark is unregistered. The symbol is displayed just after the mark and is in superscript.

Content: Registered Vs Unregistered Trademark

  1. Comparison Chart
  2. Definition
  3. Key Differences
  4. Steps for Trademark Registration
  5. Conclusion

Comparison Chart

Basis for ComparisonRegistered TrademarkUnregistered Trademark
MeaningA registered trademark is any symbol, sign, word, etc. used as a trademark by the company and registered under the Trade Mark Act, 1999.An unregistered trademark refers to any symbol, sign, word, etc., used by the company as a trademark, but not at all registered.
Symbolregistered trademarkunregistered-trademark
Governed byTrade Mark Act, 1999Common Law
ValidityPrima Facie validity is available.Owner has to prove the validity of the mark.
Burden of proofWhen the validity is challenged, it lies with the opponent, in the initial period.When the validity is challenged, it lies with the owner.
LocationCountrywide protection is available.Owner has to prove the area, in which it has gained goodwill.

Definition of Registered Trademark

A Registered Trademark is a special mark or symbol, on which an individual or firm has affirmed ownership by registering it with the National Trademark Office. The registration of a trademark provides the proprietor with the exclusive rights to use the mark, for a period of 10 years and extend it further if required. Its primary use is to bar the other party from using the mark for the concerned period, by filing a suit for infringement.

Any person or entity, who claims to be the owner of a trademark used or to be used in future, can apply for registration to the Registrar, under whose area of authority, the place of applicant’s business falls, in the manner stipulated for the registration of the trademark. In India, the registration of a trademark takes around 2 to 3 years, provided there is no opposition by the third party.

Definition of Unregistered Trademark

An unregistered trademark can be any mark, symbol, signature, word, combination of colours, numerals etc. created and used by the company or person to indicate that the products are produced or services are offered by them, but it does not provide a high security to the owner, as in case of a registered trademark.

As trademark registration, is not mandatory according to law, the owner of the unregistered trademark can add the letters “TM” as superscript, with the mark, which denotes to the public that it is an unregistered trademark. The trademark owner receives protection under the common law, wherein the remedies for infringement are confined to injunctive relief, i.e. the court may order the litigant to cease and abstain the violation.

Therefore, an unregistered trademark owner may have to face certain difficulties with respect to the enforceability of their trademark rights. The person or entity may find that there is a frequent infringement of the mark, as well as the enforceability of the mark, is also restricted to a particular region or area.

Key Differences Between Registered and Unregistered Trademark

The differences between registered and unregistered trademark are discussed in the points given below:

  1. A registered trademark is the symbol, word, logo or any other unique mark, which is legally registered with the national trademark office, representing the company or source of the product. On the other hand, an unregistered trademark is a trademark which is not officially registered; rather it is used by the company without the approval of the stipulated authority.
  2. A registered trademark is protected under the Trade Mark Act, 1999, whereas an unregistered trademark owner gets protection under the Common Law. The common law trademark rights are not as powerful as registered trademark rights.
  3. In all the legal proceedings, a registered trademark enjoys prima facie validity. Conversely, the unregistered trademark owner has to prove the validity, that the value and goodwill attached to the trademark.
  4. When the validity of a registered trademark is challenged, the burden of proof lies with the other party, i.e. the opponent. However, in case of an unregistered trademark, the burden of proving the validity lies with the owner.
  5. If the trademark is registered, then countrywide protection is available to the owner. As against, when the trademark is unregistered, the enforceability is restricted to a particular area, in which the owner has gained a reputation.

Steps for Trademark Registration

  1. Trademark search and selection
  2. Application to the Registrar for trademark registration
  3. Application number allotted to the applicant
  4. Data entry
  5. Scanning
  6. Examination and Examination report is despatched, then one of the two cases discusses below may apply:

Case 1: Accepted: Journal Publication – Manuscript, Hindi Translation, Scanning, Composing

  • Wait for Opposition; then one of the two cases may apply:
    • Case 1 (a): Registration: Preparation of Registration Certificates and Checking for Associated Marks
      • Remove the “TM” symbol and start using “R in a circle” next to your mark.
      • Renewal or Post Registration Changes
    • Case 1 (b): Opposition: Hearing is arranged, which is taken by the Hearing Officers. Further, one of the two cases may apply:
      • Case 1 (b) (i): Application to Proceed for Registration, Case 1 (a) will apply.
      • Case 1 (b) (ii): If the opposition is allowed, but the application is refused, then also the case is reviewed by the Intellectual Property Appellate Board.

Case 2: Objected: Show cause hearing, then also one of the two cases may apply:

  • Case 2 (a): Accepted, case 1 will follow.
  • Case 2 (b): Refused or withdrawn, then the case goes to the Intellectual Property Appellate Board.

Conclusion

Trade Mark is just a mark which uniquely recognises the goods or services of an entity with those of another. The registration of a trademark is not compulsory, but the law recommends it, because of the various benefits which come with it.

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Comments

  1. Made says

    May 10, 2019 at 6:54 pm

    oustanding

    Reply
  2. Zakaria Allaoui says

    August 3, 2020 at 9:02 pm

    Satisfying explanation.
    Thanks.

    Reply

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