The value of registration - Trademark
It is true that unregistered marks are also protected as marks. So, registration of a mark is not essential for its use as a trademark, especially in a common law country. In addition to, or in the absence of, common law, the law of unfair competition may be relied upon to protect unregistered marks. However, in both these situations the protection is weaker than that of a registered mark.
In a dispute concerning an unregistered mark, two points have to be proved, by abducing convincing evidence, which are not required to be proved for a registered mark. Firstly, the ownership of the mark has to be proved. Secondly, it has to be proved that the claimed mark actually functions as a mark in relation to the goods or services in question.
For a registered mark, both these are presumed to be true. So, in a dispute concerning a registered mark, it is much easier to succeed in an action for trademark infringement, which is brought by the trademark owner against others that use an identical or confusingly similar mark for the same or closed related goods and services. That is, in litigation, registered marks are more potent weapons than unregistered marks. Further, at common law, a trademark covers only the geographic region in a country where the goods are sold or the service is provided under it. So, someone else in another region may use the same trademark as long as the two territories do not overlap. If a common law trademark owner chooses to expand into another region where an identical or similar trademark is being used by someone else, then other person might be able to stop the common law trademark owner from using the trademark in that region, even if the common law trademark owner was using the trademark from an earlier date. However, in the case of a registered mark, the registration covers the whole country or region for which it is registered as a mark. It must be noted, however, that a well‐known mark is deemed to be registered in all classes of goods and services even if it is not registered in any of these.
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