A trademark plays a crucial role in establishing a brand’s identity and protecting its goodwill in the marketplace. In India, businesses may use a trademark with or without formal registration, but the level of legal protection available differs significantly in both cases. Many startups and small businesses often delay trademark registration, assuming that mere usage is sufficient. However, the distinction between registered and unregistered trademarks becomes critical when disputes arise.
This article explains the difference between registered and unregistered trademarks in India, highlighting their legal standing, rights, limitations, and practical implications for businesses.
Introduction
In the current business world full of competition, a brand can be considered more valuable than physical assets. Consumers can recognize the origin of goods or services with names, logos, slogans and symbols. These marks are safeguarded by trademark protection. In India, the protection of trademarks is regulated by the Trademarks Act of 1999.
The main misperception that most business owners have is that registration is not required or optional, provided that the trademark is in use. Though it is a fact that even unregistered trademarks are only subjected to minimal protection, enforcement is much more difficult and uncertain. Knowing the difference between a registered and unregistered trademark can assist business people to make the right decisions and prevent legal problems in future.
What is a Registered Trademark?
Registered trademarks are those trademarks that have been registered under the Trade Marks Act, 1999, by the Indian Trademark Registry. Upon registration, the trademark owner is issued a certificate of registration and is allowed to use the (r) symbol.
Registration gives the owner statutory rights, such as exclusive ownership of the mark to the goods or services that the mark is registered for. The registration has a ten-year initial term with an indefinite renewal period.
Registered trademarks are good legal proof of ownership, and enforcement against infringement is easier.
What is a Trademark that is Not Registered?
An unregistered trademark is a mark that is in use in trade that has not received official registration with the trademark authority. This does not imply that such marks cannot gain recognition and goodwill by continued and prior use.
Though the Trade Marks Act acknowledges the existence of the unregistered trademarks to some degree, the protection is founded on the common law principles, and not the statutory rights. A person who owns an unregistered trademark is not entitled to the infringement, but can apply the law of passing off protection.
Protection under the Law: Registered and Unregistered Trademarks
The greatest distinction between registered and unregistered trademarks is the type of legal protection that is available.
A registered mark is secured under the law. The infringement suit can be filed by the owner without him or her having to claim reputation or prior use. Registration in itself suffices to prove ownership.
An unregistered trademark, in its turn, is a protection of the common law. In a passing-off action, the owner has to demonstrate goodwill, misrepresentation and damage. This complicates, increases the time and raises doubts about enforcement.
1. Rights of the Trademark Owner
- A registered trademark owner enjoys exclusive rights to use the mark and to prevent others from using identical or deceptively similar marks. These rights extend across India, regardless of the geographical area where the trademark is actually used.
- In contrast, rights in an unregistered trademark are limited to the geographical area where the mark has acquired a reputation. Protection does not extend nationwide unless widespread recognition can be proven.
2. Ease of Enforcement
Registered trademarks are much easier to enforce. The courts assume the validity and ownership and make the infringer bear the burden of proving otherwise.
To enforce passing-off with respect to unregistered trademarks, a considerable amount of evidence is needed, including:
- proof of prior use,
- sales figures,
- advertising expenses,
- consumer recognition.
This usually renders lawsuits costly and unpredictable.
3. Remedies Available
- Some of the remedies to be sought by a registered trademark owner include injunctions, damages, account of profits, and seizure of the infringing goods.
- A registered trademark owner may only seek the remedies of passing-off, which are mainly an injunction and compensation, as long as the elements of passing-off are properly proven.
4. Use of Trademark Symbols
- Registered trademarks have the right to use the (r) symbol (symbol of registration and legal protection).
- Unregistered marks can take the form of the TM mark, which means that they claim the mark but do not give it statutory protection.
5. Business Worth and Brand Trust
- Trademarks that are registered give a business a lot of commercial value. They boost brand integrity, appeal to investments, and are needed in most cases in licensing, franchising, and assigning.
- Unregistered trademarks can develop goodwill, but they are still not officially registered and are not very appealing in commercial transactions.
6. Duration of Protection
- The registered trademark provides protection on a long-term basis by renewing every ten years.
- Unregistered trademarks are only safeguarded up to the time when they are actively in use, and they are well-received. As soon as the use is discontinued or goodwill goes down, the protection becomes weaker.
7. Cost and Time Consideration
- Trademark registration is an expensive affair of government and professional charges, but it is a one-off cost that has long-term advantages.
- Although there are no initial expenses when using unregistered trademarks, the financial cost is usually incurred during the process of enforcement because litigation expenses are very high.
8. The Business Implications in Practice
- When it comes to startups and small businesses, the initial business might find it cost-effective to use unregistered trademarks, but the brand will be at risk of legal problems. Others can also trademark the same marks, compelling the initial user into protracted court battles.
- Registered trademarks give it certainty, stability and protection and therefore are an asset to the business and not a legal formality.
Conclusion
There is more to the distinction between registered and unregistered trademarks than legal technicalities. Whereas unregistered trademarks receive partial protection under the common law, registered trademarks provide stronger, nationwide, and enforceable rights under the statute. Registration eases enforcement, boosts brand value, and shields the businesses against unwarranted lawsuits. The market is becoming very competitive, and trademark registration in India is not only useful but necessary to protect the identity of a brand and ensure its future development.
