Can Unregistered Trademarks be Protected?

by  Adv. Rupa K.N  




3 mins


Unregistered Trademark


A trademark is any term, phrase, symbol, or design that identifies your goods or services or a combination of these things. It is how clients identify you in the marketplace and differentiate you from your competition. The identity or brand image of a specific product or service is referred to by the term”trademark.” A trademark is used to identify commodities, whereas a service mark is used to identify services. A trademark:

  • Identifies the origin of your goods or services.
  • Provides trademark legal protection.
  • Aids in the prevention of counterfeiting and fraud.

Unregistered Trademarks

Unregistered trademarks are those that have not been registered under the Trademark Registration Act. Section 5(4)(a) of the Trademarks Act of 1994 allows for the protection of an unregistered trademark. The Act of defending an unregistered trademark is known as passing off.”

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Essential elements of Unregistered Trademark

The following are essential features of an unregistered trademark:

  • The Trademark is not registered under the Trademarks Act 1999
  • The symbol “TM” is used by the owner of an unregistered trademark.
  • It is protected by customary/common law rather than the Trademarks Act of 1999.
  • Its protection is based on the product’s reputation, which the owner must verify.
  • In the event of a dispute with an identical or similar registered trademark, the owner must present proof of use of such a mark.

Protection of Unregistered Trademark

Unregistered trademarks have statutory protection under Sections 34 and 35 of the Trademark Act of 1999. These clauses protect the rights of unregistered trademarks by merely declaring that a prior user of a trademark has precedence over later users, even if the brand is registered.

India, as a common law jurisdiction, observes codified not only law but also common law principles, and as such, allows for infringement and passing off lawsuits against trademark infringement. The Trade Marks Act, Section 135, recognizes both infringements and passing off proceedings.

Even under Section 11(3) of the Act, a trademark must not be registered if its use in India is likely to be hampered by the law of passing off that protects an unregistered brand.

Passing Off of Unregistered Trademark

Prior to the enactment of trademark legislation, the owner of an unregistered trademark was protected under the common law of torts. The provision of such protection extended to both registered and unregistered trademarks. The fundamental tenet of passing-off is that no one has the right to represent their goods as the property of another. Therefore, the right method for obtaining remedies in the event of unregistered trademarks is through an action against passing-off.

  • The specific brand name/Trademark must be unique, and the claimant/owner must be the previous usage of such Trademark.
  • A significant quantity of goodwill/recognition must exist in the market for the specific Trademark.
  • Copying or reusing your unregistered brand will harm your market reputation.
  • The reuse will lead to confusion regarding your previously used unregistered Trademark.
  • There is a misleading portrayal of the disputed products or services that causes consumer confusion, and an association is transmitted with the owner’s goods and services.
  • The trademark owner has suffered losses or damages as a result of such misrepresentation.

The above-mentioned essentials will now be examined by the appropriate authorities when seeking protection for an unregistered trademark. It must be obvious that the defendant’s use of a similar brand is damaging to the owner of the Trademark while being misleading to the public and customers.

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Unregistered Trademark and infringement

The Trademarks Act recognizes unregistered trademarks in the same way it recognizes registered trademarks. A user of an unregistered trademark, on the other hand, cannot sue for trademark infringement. Section 3 states it succinctly:

“No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark; but nothing in this Act shall be taken to affect rights of action against any person for passing off goods as the goods of another person, or the remedies in respect thereof.” 

Unregistered trademarks are not eligible for infringement lawsuits under the Act, but they are protected under the common law tort of passing off. But for a passing-off claim to be successful, it must be shown that an unregistered trademark has a reputation or analogous goodwill in connection with the products, businesses, or services it is utilized with.

Disadvantages of Unregistered Trademark

1) One of the biggest disadvantages of not having the Trademark registered is that the owner will have to establish that there is goodwill and reputation associated with your unregistered brand that is utilized to sell products or provide services in the case of litigation.

2) It does not have the statutory benefit provided by the Trademarks Act, such as the ability to sue for infringement under Section 27 of the Act.

3) The owner of an unregistered trademark bears the weight of the consequences of not having legal proof of ownership for their intellectual property. 

4) When the ownership of an unregistered trademark is contested, the burden of evidence lies on the owner.

5) An unregistered trademark will not get much recognition apart few specific regions. It will definitely limit the brand’s recognition.

6) The owner of an unregistered mark cannot use the “R” symbol but must instead use “TM,” implying that the mark is not registered.

Why should trademarks be registered?

A trademark registration gives a right of monopoly over the specific mark in a particular territory. It allows the owner of a registered trademark to prevent unauthorized use of his mark in relation to products or services. Moreover, it helps the business grow and flourish. Trademarks can be registered easily with the help of an online lawyer who will guide and give you the right kind of advice or a business lawyer who will give the right kind of business consultation. 

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In India, trademark registration is not required, in contrast to other laws from numerous other nations. Unregistered trademarks undoubtedly have some legal protection. Such protection, however, cannot be compared to the rights that a registered trademark has.

It should go without saying that a registered trademark owner has a lighter burden of proof than one who owns an unregistered trademark. As a result of its importance as evidence as well as the benefits it offers, trademark registration is recommended.

A trademark registration protects your brand from unauthorized use by third parties.Consult a lawyer and get your trademark registered.

Adv. Rupa K.N

Adv. Rupa K.N


5 | 277+ User Reviews

Advocate Rupa K.N, with over 24 years of independent practice, specialises in providing legal expertise, advice and guidance to a broad range of customers. Having been practising law independently for several years after doing her B.A. LLB from Bangalore University and PGDM from the National Institute of Personnel Management.

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