Difference Between Registered and Unregistered Trademark

Difference Between Registered and Unregistered Trademark

Difference Between Registered and Unregistered Trademark – Lawdef

Trademark is any unique symbol, word name, logo, tagline etc that distinguish the goods and services of one person from another in the market. Today as the world is moving towards diversification the competition in the market is increasing extensively.  One factor that plays the major role in giving the competitive advantage to a firm is trademark. The brand name can help the firm in tapping the considerable range of consumers in the market and sell their goods. Some of the brand names include Nike, Puma, Apple, Levis etc who are able to gain the trust of the consumers with their name and the quality. Thus, trademark holds a great value for a business unit. Now there are two category of Trademark known as the registered and unregistered mark.  Through this article we will take a look at the difference between the registered and the unregistered mark.

Registered Mark

The registered trademark in India is the one that has gone through the complete Trademark registration procedure  and got itself registered with the trademark registry.  A trademark is registered under the Trademark act 1999 and gives the bundle of rights to the registered owner. For getting the registration the applicant is required to prove that his mark gives the unique identity to  his goods and services and can be easily distinguished with the other marks present in the market. A registered trademark is a intangible asset for the company that it can sell, lease or assign to other person.  In India it is not mandatory to obtain the Trademark registration however it is always recommended to get the registration for availing the multiple benefits associated with it.

Unregistered mark

An unregistered trademark is the one that is not registered under the Trademark Act 1999 and does not possess the rights that comes with trademark registration.  The marks which are not registered in India are not protected by any statuary law but are protected under the common law.  The common law does not provide the right against infringement but it does provide the right to sue for passing off. The passing off is the mechanism that involves the practise of conducting the unfair practise and trying to take the benefits from the goodwill of the another business.  If the unregistered proves that the other person is using his mark for selling the goods and services for deceiving the public at large, he can stop him.

What is the difference between the registered and Unregistered mark?

BasisRegistered MarkUnregistered Mark
Legal StatusAs the name suggests these marks are legally registered under the Trademark Mark 1999.The marks which are not legally registered under the Trademark Act 1999 are called unregistered mark.
Right to use the symbolOnce the trademark is applied the applicant can apply the ™ beside the mark and when it gets registered the owner can finally put the ® symbol beside its Trademark and reserves the unique rights on his name. The unregistered trademark can just put the ™ beside the mark to reflect that his rights are reserved on his mark and nobody can use it. But he cannot put the ® symbol beside his mark.
Burden of proofThe registration of the mark is itself the proof of its validity. The registered owner can show the registration certificate as the proof of the existence and validity of the mark.As the mark is unregistered the burden to proof the validity of the mark lies on the owner. He can only gain the rights if he has the considerable amount of reputation in the market.
Remedies AvailableThe registered mark has the statuary rights for the protection of his mark. He can use his legal rights against the infringement of his registered mark.The unregistered trademark has the rights only under the common laws and not any statuary rights.
Geographical BenefitsThe mark once registered gets the protection all over the country and not just any specific geographical area. Thus, he can prevent any person from using his mark in all over the country.The unregistered mark holder is required to prove his usage and the existence of his brand names in the areas he desires to obtain the rights.

 

In this manner the registered trademark is distinguished from the unregistered mark and the benefits of getting the mark registered can also be analysed here.