Registered vs. Unregistered Marks

Posted Wednesday, January 09, 2008 by Jim Ruttler.

Ownership in a mark begins upon use of the mark to sell goods or services to bona fide consumers. Thus, unlike patent law, trademark registration is optional and not required. However, trademark registration includes a number of benefits that make it highly desirable and advantageous. First, unregistered marks can result in multiple entities selling under the same mark in different geographic regions. This issue can make expansion and subsequent registration of a mark difficult. Next, there is no way to preserve rights in an unregistered mark prior to using the mark in sales like there is with federal registration. Thus, an unregistered mark is not protected between the time the mark is selected to when actual products and services are sold. Also, unregistered marks must be proven valid and enforceable whereas registered marks are presumed valid and enforceable. Lastly, owners of registered marks are able to enlist the aid of U.S. Customs to prevent the importation of infringing products. In short, careful consideration must be made early on as to whether to register a trademark as unregistered marks are weak and are associated with a number of other risks.

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