Unregistered Trademark vs Registered Trademark | How to Choose

 

In India, trademark registration online is governed by the Trademarks Act, 1999 ('Act'). It helps an individual or organisation differentiate their services or goods from others. But, do you really need to get a trademark for your business. Let us find out in this article about unregistered trademark vs registered trademark.

 

Registered Trademark

A Registered Trademark is a unique mark or sign that has been registered with the National Trademark Office by an individual or company. 

A trademark registration grants the owner exclusive rights to use the mark for a term of ten years, with the option to extend it if necessary. 

Its purpose is to prevent the opposing party from using the mark for the specified period by filing infringement litigation.

Any person or company claiming to be the owner of a trademark that has been used or will be used in the future can apply for registration to the Registrar in whose jurisdiction the applicant's business is located. 

It should be in the manner prescribed for trademark registration. 

In India, trademark registration takes about 2 to 3 years if there is no opposition from a third party.

 

Unregistered Trademark 

An unregistered trademark can be any mark, symbol, signature, word, a combination of colours, numerals, or other symbol created and used by a company or person to indicate that their products or services are produced or offered. 

But it does not provide the owner with the same level of security as a registered trademark.

Trademark registration is not required by law. 

The owner of an unregistered trademark can use the letters "TM" as a superscript to indicate to the public that the mark is unregistered. 

As a result, an unregistered trademark owner may have challenges in enforcing their trademark rights. 

The person or business may discover that the mark is frequently infringed upon and that the mark's enforceability is likewise limited to a specific region or area.

 

Key Trademark Differences Between Registered and Unregistered

The following points describe the distinctions between Unregistered Trademark vs Registered Trademark

• A trademark is a symbol, word, logo, or another distinctive mark that is legally registered with the national trademark office and represents the firm or source of the product. Unregistered trademarks, on the other hand, are not officially registered trademarks that are used by a corporation without the approval of the appropriate authority.
• The Trade Mark Act of 1999 protects registered trademarks, whereas unregistered trademark owners are protected under common law. Registered trademark rights are more powerful than common law trademark rights.
• A registered trademark has prima facie validity in all legal actions. In contrast, the unregistered trademark owner must demonstrate the trademark's validity, as well as its value and goodwill.
• When the validity of a registered trademark is contested, the burden of proof falls on the opposing party. In the event of an unregistered trademark. However, the owner bears the burden of proof.
• If the trademark is registered, the owner will have nationwide protection. When a trademark is not registered, its enforcement is limited to a specific area in which the owner has established a reputation.

 

Steps to Register a Trademark

 

Step 1: Search online for a "memorable" brand name to register.

It is simply the quickest and most effective technique for any beginner to obtain a memorable, trendy, and intriguing company name. 

Choosing a weird and quirky brand name is a smart option because most generic names are already in use. 

Furthermore, deciding on a name necessitates a quick research procedure to verify that you are not selecting a brand name that is already in use. 

The best aspect is that you may develop a distinctive brand name for yourself by inventing or coining some words from a combination of generic phrases.

 

Step 2: Putting up a trademark application

For online trademark registration, the following supporting papers must be submitted with the application:-

• Business Registration Evidence: An identification proof of the company's directors and an address proof must be supplied based on your registered business (for example, sole proprietorship and so on). In the instance of a sole proprietorship, the proprietor's id proof, such as a PAN or Aadhar card, could be submitted. In the case of businesses, the address evidence of the business must be presented.
• An electronic copy of the trademark.
• The proposed mark's proof of claim (if applicable) can be utilised in another nation.
• The applicant must sign a power of attorney.

 

Step 3: Submitting a trademark registration application

The registration application can be filed in two ways: manually or electronically (form TM-A). 

If you select manual filing,' you must personally transport and hand over your registration application to the Registrar Office of Trade Marks in major Indian cities such as Delhi, Mumbai, Kolkata, Ahmedabad, and Chennai. 

After then, you must wait at least 15 to 20 days to obtain the acknowledgement of receipt. 

However, if you use an electronic filing system, you will obtain your receipt of recognition on the government website very immediately. 

You can use your Trademark (TM) symbol beside your brand name once you receive your recognition!

 

Step 4: Examining the brand name application process

After you submit your application, the Registrar of Trademarks will review it to see if you followed all of the criteria and that your brand name is legal. 

Furthermore, the registration should not be similar to or identical to any existing or pending brands. 

It is why we recommend that you create a unique brand name!

 

Step 5: Your brand will publish in the Indian Trade Mark Journals.

The Registrar of Trademarks will publish your brand name in the Indian trademark journal following the examination procedure. 

It is the most significant element of the trademark registration.

No opposition should file within three months of the date of publication, i.e. 90 days (or 120 days in some situations). 

The Registrar of Trademarks will proceed to issue the Trademark Registration Certificate if there is no opposition.

 

Step 6: Opposition to a Trademark

If a third party files an opposition within three months of the trademark publication in the journal, the Registrar of Trademarks will send you a copy of the opposition notice. 

Within months, you must respond to the opposition notice by filing a counter-statement. 

The trademark application will abandon and reject if the counter statement does not submit within two months.

If no opposition is files within three months, this procedure will not apply to you.

 

Step 7: Trademark Opposition Hearing

If there is no trademark opposition, this procedure will not apply to you.

If a third party opposes your trademark registration and you have to respond within two months.

The Registrar of Trademarks will send a copy of your counter-statement to the third party opposing trademark registration.

You and the third party must produce evidence in support of your claims. 

Following the submission of evidence, the Registrar will hold a hearing for you and the third party. 

The Registrar will issue an order accepting or rejecting the trademark application after hearing both parties and examining the facts. 

If the Registrar of Trademarks accepts your application, he will begin the process of issuing your trademark.

 

Step 8: The issuance of the trademark registration certificate

If no objection is files within the 90 days, the Registrar will accept your trademark application.

You can use the registered trademark symbol (®) with your brand name immediately after receiving your certificate.

As a result of this blog article, we believe that even a novice can grasp how to create a brand name, the difference of Unregistered Trademark vs Registered Trademark and apply for trademark registration online.