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Unregistered Trademarks: Key Insights You Need to Know

Unregistered Trademarks: Key Insights You Need to Know

Explore how unregistered trademarks can offer protection and brand recognition. Learn why understanding these rights is crucial for your business success.

 In summary:

  • The law protects unregistered trademarks, or “common law trademarks”, only when you can prove that real customers recognize them
  • You should use “™” for goods you provide and “℠” for services
  • If you plan to expand beyond local sales and need to block out your brand, you should consider registering the trademark

The right to an unregistered trademark is automatically applied as soon as you start to use it in public, provided it’s recognized. These powerful rights can help you protect your brand and keep it in the minds of existing customers, but they are not far-reaching.

Below, our guide offers practical trademark protection tips and advice on how to file for registration. Keep reading to discover the benefits of applying to the United States Patent and Trademark Office (USPTO) and what that entails. Finally, learn how Berkeley Law & Technology Group LLP can help you with the trademark registration process.

What Is an Unregistered Trademark?

An unregistered trademark is a brand mark, be it a logo or a noun, which has protection in law. However, as it is unregistered, the scope of its protection is much more limited compared to if you were to register it.

The protections it offers are limited only to the regions in which your mark is recognized among consumers. However, a trademark asserts your intellectual property rights even if you never file a registration, making simply using it a trigger for it being “yours”. 

What Happens if a Trademark Is Not Registered?

If you do not register your trademark, you will still be able to protect your mark from similar uses in any market where you can prove recognition. However, there will be no nationwide presumption that you own the mark, and the USPTO will not block others from filing for the trademark later on a larger scale.

If you can prove that someone using your trademark continues to use it in an area in which you have precedence, you can even sue for damages. For example, you could seek lost profits or have them place corrective advertisements in locations to assert that you own the trademark in an area.

Be aware, however, that your trademark should be a clearly unique design. A descriptive term or a weak mark is a lot harder to enforce, as people will be less likely to associate it with your brand. Failing to protect your use can start to weaken your rights, so registering your trademark could be one of several brand protection strategies you could leverage.

When to Register the Trademark

While continuing to use an unregistered trademark is a valid method for applying your brand identity in an area, 11.6 million trademark applications were filed in 2024. Companies are applying, even if their efforts to expand beyond a specific border are limited, as it offers several key protections that can be helpful in the long-term or if they plan to sell the brand later.

So, we would recommend that you register if you:

  • Plan a national (or multi-state) rollout of your brand
  • Wish to protect your brand in USPTO records
  • Need to prove your trademark’s precedence easily
  • Want Customs to recognize counterfeit goods easily
  • Are trying to secure investment or funding
  • Have noticed lookalikes appear elsewhere

How a Trademark Registration Lawyer Can Help

Having one of our professional attorneys on your side can allow you to register and protect your trademark without needing to worry about needing comprehensive legal knowledge to avoid mistakes. They can do things like:

  • Conduct searches for trademark availability
  • Develop a filing strategy to best protect your brand
  • Respond to inquiries from the USPTO
  • Represent you in court regarding trademark issues
  • Assist you with enforcing your trademark

Whether you plan to expand globally or want to register for the possibility in the future, we can help you get the results you need.

Frequently Asked Questions (FAQs)

Does ™ Mean Unregistered Trademark?

Often, yes, ™ is the standard symbol used when you want to indicate that you have not registered your trademark with the USPTO. However, it is not the only such mark.

You should only use ™ when discussing physical goods, whereas ℠ relates to services that you can provide. 

You should only use the symbol ® when you have registered your trademark with the USPTO. Doing so early could lead to legal problems that could set you back significantly.

Post-registration, you are still allowed to use ™, and you should not experience problems if you do so. Many companies do this simply as a visible part of their branding, and people would be confused if they saw their brand written without it.

Do You Need a Registered Trademark?

You are not required to register a trademark to use it. However, doing so comes with stronger legal tools to help enforce your brand identity. It can also help the USPTO block marks that others might file later, preventing you from needing to defend yourself.

In general, businesses tend to register for trademarks when they start to scale up. Before that, their trademark is more easily defensible in a smaller area.

What Are Other Names for an Unregistered Trademark?

The commonly used phrase, “unregistered trademark,” is not a legal term. Instead, it is a “common law trademark”, with other, informal terms also in existence that include:

  • Unregistered trademark
  • Use-based trademark
  • Common law mark
  • Unregistered brand identifier
  • Non-federal trademark
  • Unregistered designation

While not the legal term, these names do not alter the rights that you receive on using a common law trademark. They are also occasionally more easily understood by laypeople or those in specific industries.

Register to Protect Your Brand at Scale

Your rights to an unregistered trademark exist as soon as you use it in reality. However, they are effectively local, and can be harder to defend the further away another user is.

To ensure that you have the protection you need, you should work with an attorney such as those from Berkeley Law & Technology Group LLP. We offer comprehensive trademark registration services and guide you in selecting and protecting trademarks. Whether you need the trademark filed, monitored, or enforced, or if you need a competing trademark opposed, we can help.

So, get in contact with us to learn how we can bring our legal strategies to bear today.