Can you use a trademark without registering it?

by | May 2, 2023 | Filing, Insights | 0 comments

The short answer is yes. You do not need to register your trademark to be allowed to use it. In fact, you are even allowed to use the ™ symbol with your mark regardless of whether it is registered or not.

All this does not mean, however, that you should not register your trademark. If you decide to use your trademark without registration, you remain vulnerable. Here are the main risks and challenges you face.

  1. You are not the legal owner of your trademark

Legal ownership of a trademark is established with a registration. So, you cannot say that your trademark or brand is “yours” (at least in the legal sense). You just happen to use it, but others might happen to use it as well. Using a mark without registration is like using a public park. You have a right to be there, but so do others.

In some countries it is possible to get limited legal rights just by using the mark, but a) this does not apply to most countries, b) the rights are often very limited, and c) it is always expensive to establish those rights because they are presumed not to exist.

  1. You cannot prevent others using your mark

This follows from the first point. Since you are not the legal owner of your mark, you do not have any rights to prevent others from using it. Again, it’s like being in a public park. You must allow others to be there too. You cannot throw them out, even if their presence disturbs you. 

  1. You are on borrowed time

If a private party comes and buys the park, it’s his property and he can kick you out. The same is the case with a trademark you have been using. If somebody else registers a similar trademark, they can demand that you change your brand. You are constantly vulnerable for somebody claiming ownership of your mark. Trademarks operate on “first to register” principle. As long as your mark is not registered, it’s up for grabs.

There may be instances where you can fight back if somebody else registers the same or similar trademark, but this will be highly expensive and uncertain. 

  1. You are wasting your marketing budget

If you spend a lot of money promoting your brand, and you suddenly must change it, all that money that has been invested in making the mark known will be wasted. You have to go back to square one and start building a new brand from scratch. A trademark registration protects the investment you make in promoting your brand. Promoting your unregistered brand is like maintaining the park for others. You spend money mowing the lawn, trimming bushes and watering flowers, only to discover that somebody grabs it from you.  

  1. You are leaving money on the table

If you want to get outside investors, not having a registered trademark reflects badly on you. Protecting a trademark is a miniscule cost in comparison to how it reflects on your company. Not protecting your trademark shows a potential investor that you don’t think your business is worth much. If you don’t want to invest in your business, why would an outsider? Also, studies show that companies that have protected their intellectual property asset get more funding with higher valuation.

Conclusion

Registering a trademark is not a condition for the right to use the mark. The default position is that any name can be used by anybody. This right is limited by registered trademarks of other companies. If somebody has already registered a trademark, you cannot use it or a similar name. This also means that if you don’t register your mark, somebody else could, and you might find yourself infringing their rights. This can be the case even if you have used your trademark first.

The easiest, fastest and cheapest way to get legal rights to your brand name and other brand elements is to register them as trademarks. 

 

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