What is the difference between a registered and unregistered trademark?

What is the difference between a registered and unregistered trademark?

A registered trademark will prevent and stop third parties from using your trademark and allows you to take legal action against anyone who uses it without permission, they have stronger legal brand protection. The unregistered trademark may enjoy copyright protection and can be protected in jurisdictions affording protection based on trademark’s use in commerce, otherwise, it only gives the opportunity to third parties to register it before you and prevent you from continuing to use it. Even for those countries where unregistered trademarks are protected, you are well-advised to register it in order to obtain the best protection.

The European Union trademark system is register-based. It is different from Common law countries (like US or UK, where the protection for unregistered marks is also ensured). An EU trademark can be gained solely through registration with the European Intellectual Property Office (“EUIPO”) or an international registration with the World Intellectual Property Organization (“WIPO”) and designation of the EU.

The requirement of registration in EU is expressly laid down in Article 6 of the EU Trademark Regulation. Article 6 goes the following:

An EU trade mark shall be obtained by registration.

There are no unregistered trademark rights at EU level. Even if the mark is a well-known mark in the EU, it has no protection if it is not registered. The exception may apply only in separate national countries. The laws of the national Member States in the EU can give the protection for the unregistered trademarks. However, then the protection is given only in that country and not all EU.

For example, the law of passing off applies in the United Kingdom, Ireland, and Cyprus. No protection is given for the unregistered marks in Benelux countries, Croatia, Estonia, France, Hungary, Lithuania, Poland, Romania, Slovenia, and Spain. In these countries, the only way to have protection for the unregistered trademark is under the conditions of Article 6bis Paris Convention (protection of well-known marks: a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of the Convention and used for identical or similar goods.)

If your trademark is not registered, you are risking to lose it, or that somebody else will register and gain the trademark rights before you. We advise registering the trademark in all jurisdictions where you are selling and offering goods or services.