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Although the range of protection is limited to the region where you use your unregistered trademark, you can protect an unregistered but valid trademark from infringement and dilution under common law. This means you can send a cease and desist letter to try to stop someone from using the trademark without your license.
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To prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff's consent.
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Indeed, federal law allows for a trademark infringement claim even without registration (15 U.S.C. § 1125 (a)). Generally speaking, your right to sue for an unregistered trademark will be restricted to your own geographic area and/or to bringing a false advertising claim. By Registering a Trademark, You Will Enhance Your Rights
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Unregistered trademark infringement The unregistered trademark cannot be infringed as the owner cannot bring the infringement proceedings, which is well known as unregistered trademark infringement. Trademarks Act 2002 prohibits the owner of an unregistered mark from bringing proceedings for infringement, the owner still has rights under the tort of the Fair Trading Act.
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When a party begins use of an unregistered trademark, common law rights may automatically apply. Although these are limited to the geographic area of such use, they are enforceable in essentially the same manner as rights in registered marks.
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An unregistered trademark is a mark that has not been registered at the U.S. Patent and Trademark Office (or at any of the state trademark offices). Owners of unregistered trademarks nevertheless have legal rights within the geographic areas in which they operate.
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Someone claiming trademark infringement must prove a valid trademark, unless the trademark is registered, and the defendant's use of the mark has created a likelihood of consumer confusion, mistake, or deception. Trademarks are presumed to be valid if they are registered. However, if they are unregistered, the person claiming to be the owner ...
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On April 23, 2020, the U.S. Supreme Court unanimously ruled that a trademark owner is not required to submit evidence of the infringer's intention or state of mind as a precondition to recover profits earned from an infringer's unauthorized use of the trademark. 1
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An unregistered trademark is usually not well known and only has a small footprint in the U.S. marketplace. If your business is thinking of launching a new trademarked product or service, an experienced intellectual property lawyer can help you weigh the pros and cons of investing in a federal trademark registration.
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Trademark law protects the value of brands by preventing unauthorized use of a logo, phrase, or other mark in a way that could cause confusion. The Lanham Act, found in Chapter 22 of Title 15 of the U.S. Code, established national standards for trademark registration, and allows private lawsuits in cases of infringement.
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In simple terms, when an unauthorized person uses a mark that is 'identical' or 'deceptively similar' to a registered trademark, it is known as infringement.
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In 2007, the Supreme Court of Nigeria in Omnia (Nig.) v Dyktrade Ltd 12 held that the Federal High Court has exclusive jurisdiction to hear and determine a claim for passing off whether the claim arises from the infringement of a registered or unregistered trademark.
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An unregistered trademark or common law trademark 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 granted by statute.. As with statutory trademarks, a common law trademark utilizes graphics, images, words or symbols, or a combination of such, to signify the distinctiveness or source ...
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Trademark infringement is based upon use. A plaintiff with an unregistered trademark can win a court case.
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Unregistered trademarks can be valid and provide the trademark owner with the exclusive right to use that mark. Instruction [ insert number of instruction regarding Trademark Elements and Burden of Proof, e.g., 15.6] requires the plaintiff to prove by a preponderance of the evidence that [ describe plaintiff's alleged trademark] is valid.
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But, what happens in the event of infringement? Can unregistered trademark owners enforce their rights? The answer is yes. Let's discuss this in detail below - Understanding Unregistered Trademarks. Unregistered trademarks are simply trademarks that are not registered with the Canadian Intellectual Property Office.
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To have rights to an unregistered trade mark, you must be able to show that: your goods and services have a sufficient reputation in the market; and the mark is sufficiently recognisable as your brand by consumers.
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- Lord Halsbury Passing Off (not referring to college or school here) is a common law tort, which can be used to enforce the rights of an unregistered trademark holder. What it does is that it prevents one person from misrepresenting his goods and services as that of another.
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According to the Intellectual Property Office no available remedy exists for trade mark infringement if the earlier trade mark is unregistered. It does however state that some unregistered trademarks may be protected under Common Law and this protection is known as 'Passing off'.
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Whether trademark infringement of a federally registered trademark, dilution, tarnishment, or some form of unfair competition, such as infringement of an unregistered mark, or false designation of origin, false endorsement claims, or false advertising and commercial misrepresentation, A.E.I. Law can help.
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