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An unregistered or common law trademark is an enforceable mark created by a business or individual to signify or distinguish a product or service. A common law or unregistered trademark 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 of a product or service.
A significant distinction of an unregistered trademark is the trademark owner does not receive as much protection as the owner of a federal or state registered trademark. If a trademark owner registers in a state, the trademark owner can enforce the trademark throughout the entire state, and receive similar statutory remedies.
In the United States , neither federal nor state registration is required to obtain common law trademark protection, albeit the protection may be limited. In contrast to federal registration, common law trademarks are usually enforceable only within the geographic region or locale where the trademark owner is using it in business.
When an infringement occurs, an unregistered trademark owner may not be able to sue and collect damages or recover attorneys fees. In those jurisdictions with limited protection to unregistered trademark owners, a common law trademark owner's remedies may be limited to injunctive relief a court order for the defendant to cease and desist the infringement.
Unlike other trademark statutory provisions, a claim under the Lanham Act may permit a party to recover attorneys' fees and costs. Significantly, under the first use in commerce rule an unregistered trademark owner can defeat a later-filed federal or state registered trademark, if the unregistered trademark owner can show first use in commerce before the date of the registered trademark.
States that do not follow the first use rule resolve trademark ownership disputes by determining who first filed for registration of a trademark. Regardless of use in commerce, if a business or individual later files to register the trademark, the filing to register will take precedence over an unregistered common law trademark holder's use of the trademark. The first to file is declared the owner of the trademark. In first-to-file states this sometimes causes a race to file an application because a granted registration may provide protection to the date the trademark owner first filed the trademark application.
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Registered trademark Service mark Trade dress Unregistered trademark Wordmark. Certification marks Chartered marks Collective trademarks Defensive trademarks Electronic registration marks Font trademark Ghost marks Geographical indication Protected designation of origin. Colour trademarks Hologram trademarks Motion trademarks Scent trademarks Shape trademarks Sound trademarks.
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