Building a brand is crucial to the growth and success of a business or enterprise and in this scenario; trademarks are used to prevent copycats from using your idea and by doing so you can mark your territory. Hence it becomes all the more important to understand the difference between registered and unregistered trademarks.
An unregistered trademark is an enforceable mark created by a business or an individual to signify and distinguish a product or service. Just like the statutory trademarks unregistered trademarks use graphics, images, words, symbols or a combination of all to differentiate the source of a product or service.
Although not accorded legal protection, the owner of an unregistered trademark can append the mark with the letters ‘TM’, which serves as a notice to the public that the words or symbols are unregistered trademark.
Once a trademark is approved and registered (For more on the types of trademarks you can register read our detailed guide: “Types of Trademark in India”) it means it is legally registered and can be easily figured out as the trademark carries an encircled letter ‘R’ while in use.
You can sue any party who is using your mark without your consent no matter in what state the infringement occurs.
Validity is presumed to act upon the registered trademark but not in the case of a TM where the owner has to prove that value and reputation is attached to it in association with the goods and services sold to the consumer.
In the initial period the burden of proof lies with the opponent when the validity of the registered trademark is challenged but in case of a TM the burden of proof lies with the owner when the validity is challenged.
Trademark registration lasts for 15 years from the date of registration and renewed multiple times but the owner of the unregistered trademark has to prove the length of time the goodwill exists or existed in case of TM.
Nationwide protection is available to the registered trademarks but the owner of an unregistered trademark has to prove the geographical area in which it has gained reputation.