An unregistered trademark or

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...

is an enforceable mark created by a business or individual to signify or distinguish a product or service. It is legally different from a

registered trademark The registered trademark symbol, , is a typographic symbol that provides notice that the preceding word or symbol is a trademark or service mark that has been registered with a national trademark office. A trademark is a symbol, word, or word ...

granted by statute. As with registered trademarks, a common law trademark utilizes graphics, images, words or symbols, or a combination of such, to signify the distinctiveness or source of a product or service. Although not required by law to do so, an unregistered trademark owner can append the mark with the letters "TM" (visualized by the

trademark symbol The trademark symbol is a symbol to indicate that the preceding mark is a trademark, specifically an unregistered trademark. It complements the registered trademark symbol which is reserved for trademarks registered with an appropriate gov ...

™). A ™ serves as notice to the public the words or symbols are an unregistered trademark. In contrast, trademarks granted by the

United States Patent and Trademark Office The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alexa ...

(USPTO) may have the ® symbol next to the trademark. U.S. Federal law prohibits an unregistered trademark owner gaining any benefit from using the ® with the trademark.15 U.S.C. 1111 A significant distinction of an unregistered trademark is the trademark owner does not receive as much protection as the owner of a federal or state registered trademark. For example, in the United States the owner of a trademark registered by the USPTO can enforce the trademark in all U.S. states, sue for damages (including lost profits), and significantly, recover attorneys' fees and costs incurred in protecting the trademark against infringement. If a trademark owner registers in a state, the trademark owner can enforce the trademark throughout the entire state, and receive similar statutory remedies. In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

, neither federal nor state registration is required to obtain common law trademark protection, albeit the protection may be limited. In contrast to federal registration, common law trademarks are usually enforceable only within the geographic region or locale where the trademark owner is using it in business. When an infringement occurs, an unregistered trademark owner may not be able to sue and collect damages or recover attorneys fees. In those jurisdictions with limited protection to unregistered trademark owners, a common law trademark owner's remedies may be limited to injunctive relief (a court order for the defendant to cease and desist the infringement). An unregistered trademark may receive protection under the federal "

Lanham Act The Lanham (Trademark) Act (, codified at et seq. () is the primary federal trademark statute of law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising. ...

" (15 USC § 1125), which includes prohibition against commercial misrepresentation of source or origins of goods. Unlike other trademark statutory provisions, a claim under the Lanham Act may permit a party to recover attorneys' fees and costs. Some U.S. states follow a first use rule when determining trademark ownership (such as

California California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...

). Significantly, under the first use in commerce rule an unregistered trademark owner can defeat a later-filed federal or state registered trademark, if the unregistered trademark owner can show first use in commerce ''before'' the date of the registered trademark. States that do not follow the first use rule resolve trademark ownership disputes by determining who first ''filed'' for registration of a trademark. Regardless of use in commerce, if a business or individual later files to register the trademark, the filing to register will take precedence over an unregistered common law trademark holder's use of the trademark. The first to file is declared the owner of the trademark. In first-to-file states this sometimes causes a ''race to file'' an application because a granted registration may provide protection to the date the trademark owner first filed the trademark application.

References

{{DEFAULTSORT:Unregistered Trade Mark Trademark law