The Lanham Act and Unregistered Trademarks

Every business will tell you that you should register a trademark at both the state and national level if possible. By doing so you are protecting your brand, business, and more, in addition to having extensive legal leverage should your business ever need it.

However, not all businesses take heed of this advice, and fail to register their trademark. The good news is that the Federal Government does provide legal protections for unregistered trademarks. In this article, we’ll dive into what exactly a trademark is, the Lanham Act, and what protections exist for unregistered trademarks in the United States.

While federal law does not require all trademarks to be registered in order to obtain legal protection, in order to file suit under the Lanham Act and receive the full benefit of a federally registered trademark. However, an unregistered trademark, also known as a common law trademark, is enforceable in state courts. A common law trademark suit is limited to the geographical area in which the trademark is used, or widely known by consumers. In order to bring a common law trademark claim, the trademark holder must show that the mark is distinctive among nationwide consumers and it is used in commerce.

While registered trademarks provide a higher level of protection, there are certain safeguards in place for unregistered trademarks. In the event that a common-law trademark owner discovers that someone else is using their mark, they may seek an injunction to stop this unauthorized use. A majority of states will not award damages for infringement of an unregistered trademark or recovery of attorneys’ fees. However, trademark laws vary from state to state.