Trademark protection is an often-overlooked aspect of running a successful business in Florida. In a competitive business environment, a distinctive trademark may help companies stand out from competitors and boost their market value.
In this article, you will find out the risks associated with unregistered trademarks in Florida.
Are Unregistered Trademarks Protected Under Law? – An Overview
Under the Lanham Act, the federal law that governs trademarks in the United States, unregistered trademarks have legal protection as long as the trademark owner is engaged in legitimate business activities.
Considering unregistered trademarks are enforceable in court, some entrepreneurs decide not to undergo the process of registration. When a company uses a particular mark associated with its products or services for a long period, that particular mark may result in common law trademark rights.
A “common law trademark” is the right acquired by a company to use a specific brand name, logo, or symbol associated with its goods or services.
If someone infringes a common law trademark, the injured party can file a lawsuit in court – regardless of the mark’s lack of registration at the state or federal level. Please note that the geographical scope of common law trademarks is limited to the area where the mark is used in business.
Companies with limited capital tend to avoid trademark registration, as the process creates additional expenses and may result in a time-consuming experience. Generally, the process may take months to complete besides the hours applied in filling out paperwork and other activities.
What Are the Risks Associated with Unregistered Trademarks in Florida?
Although it is possible to enforce a common law trademark in court, it does not have the same level of protection granted to registered trademarks in the event of an infringement.
Another risk is using a trademark too similar to a previously registered trademark. In such cases, the owner of the common law trademark may have issues in court, as the owner of the registered trademark can file a lawsuit for infringement.
Before registering a trademark, it is essential to perform a trademark search to identify whether a certain mark, symbol, logo, or phrase was already registered by a third party.
Depending on the design of a trademark, the agency responsible for the registration will not permit it. Examples of unregistrable trademarks include generic logos or insulting phrases.
Unregistered trademarks offer limited protection within a limited geographical scope. Conversely, it is possible to enforce a trademark registered with the United States Patent and Trademark Office (USPTO) anywhere in the United States.
All federal trademarks are published in a public record, which provides notice to competitors, boosts brand awareness, and avoids potential cases of infringement.
No Presumption of Validity
The legitimate owner of a registered trademark has a presumption of validity over unregistered trademarks with a similar design. In the event of litigation, a presumption of validity serves to solidify the plaintiff’s position and places a greater burden on the infringer to demonstrate the mark is invalid.