Registered vs. Unregistered Trademarks

By: Esqueda Law PLLC

What is the difference between having a federal trademark and an unregistered trademark? When you create a brand, name, logo, slogan, etc. to use for your business it is automatically intellectual property. Intellectual property is an intangible asset that is a product of creativity, used in commerce.  

Common law dictates that you have automatic rights in ownership of your trademark by virtue of creating and using it. What protections does common law provide? Common law rights typically go to the “first in time.” Meaning that whoever used the trademark first has a legal right to that trademark. Proving who used the trademark first has to be proven if a conflict arises. You now have to prove when and where you started using your mark in commerce. This puts you on the defensive and requires you to produce specimens and exhibits. 

Common law rights do not you nationwide. There is no way for someone in another state to know your trademark exists without I thought of a registration. So there’s nothing stopping them from using it. And once they do, you’re back on the defensive proving that this was your mark in the first place. 

Registered trademarks, however, are listed in the USPTO database which puts the world on notice that this mark has a registered owner. Federal registration gives the trademark owner the right to sue in federal court to enforce and protect their ownership rights. Additionally, federal registration is often the first step required in obtaining a foreign registration. 

Another benefit of having a federal registration is peace of mind knowing that you are not mistakenly infringing on someone else’s trademark. Your trademark will not be approved if it conflicts with someone else’s use.  

Need to strategize? Schedule a free constellation TODAY. Book a free 15-minute call: HERE Liza Ann Esqueda is a trademark & small business attorney specializing in trademarks, copyrights, and contract templates. Liza Ann runs a virtual attorney, serving clients nationwide. Visit: for business tips, free downloads, and course information.  

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