Yes, even though a trademark may not be formally registered, it is still possible to infringe it. Registration is not what determines whether infringement has occurred or whether it is permitted.Â
Any use of a known logo, symbol or phrase that belongs to another business and is actively used by them in the promotion of their business could still be protected, whether registered or not. You can still face consequences for using an unregistered trademark without the express permission of the owner.Â
However, it can be much harder for the original user to prove ownership if they have not registered their trademark and as a result defending it against misuse is also more challenging and much more expensive.
Ultimately, the best course of action is to not utilise a trademark that is the same or deceptively similar to one that is already in use, whether registered or not.Â
While it is much more difficult to search for unregistered trademarks given there is no database for these, it is not impossible.Â
Tools such as reverse image search on Google can help you locate similar or identical trademarks to one you hope to use.Â
Even the simple act of searching for businesses offering similar goods and services can help you locate and determine whether your trademark is unique enough in comparison to others already in use.
Remember, when it comes to defending against a possible trade mark infringement you will need to show that you did your due diligence in seeking out any possible risks for infringement. Always do a detailed search to avoid complications down the line. When it comes to due diligence, having an attorney perform an infringement search and providing a written and documented search report is the best option.
Registered trademarks can be denoted through the use of either the ​​™ symbol or the ® symbol.Â
The latter indicates that the trademark has been properly registered with an appropriate governing body, is fully protected and is only for the exclusive use of the owner of that trade mark.Â
Yes, unregistered trade marks such as logos, phrases, images or similar are permitted to use the â„¢ symbol.Â
This helps to indicate that they are in fact being treated as trademarks even if the formal registration process has not been undertaken. Unregistered trademarks may not use the ® symbol.Â
Well-known registered trademarks include the Mcdonald's Golden Arches, this is also an example of a series trademark where associated phrases and symbols are included. The tagline ‘I’m lovin it’ that is used in much of Mcdonald's advertising is also trademarked.Â
Google’s word trademark is also quite well known. The blue, yellow, red and green colours used in the logo and their arrangement within the word also make up part of the trademark specifications.Â
Likewise, the specific font used in Coca-Cola’s packaging is trade marked for their exclusive use and even the colour purple used by confectionary giants Cadbury is protected as a component of their trademark.Â
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Registered Patent and Trade Mark Attorney with significant experience obtaining all forms of registered intellectual property. I hold a Bachelor of Science in Engineering, a Masters of Business Administration and a Masters of Intellectual Property. I’m passionate about showing my clients how they can protect their brands through trademark registrations.
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I would like to express my thanks to Barry and his team at IP Guardian in Sydney for their assistance with our recent Trademark application. Barry was highly professional, readily available throughout the process and clearly communicated expectations. Barry even helped us refine our application so that we had a greater chance of success which was very much appreciated to avoid extra costs. I would highly recommend Ip Guardian for all your Trademark and Intellectual Property needs.
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Informative, understood the business, what it needed and answered questions in a friendly and approachable manner. Easy decision to continue working with IPGuardian for future trademarking
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IP Guardian helps protect words, symbols, letters, numbers, names, signatures, phrases, sounds, shapes and smells. Yes, I said smells.
We've had the pleasure to work closely with Barry for many years. He has been exceptional to deal with and has a keen focus in providing a commercial led IP "go to market" strategy for start-ups and well known brands. Makes it easy and always advises on different ways to navigate through the IP process.
Barry Meskin @ IP Guardian is an experienced and extremely knowledgeable expert in the domain of intellectual property, patents and trademarks. In addition he has been extremely responsive and very professional in all our dealings. I wholeheartedly recommend Barry's services to any business or anyone seeking advice in this area - great quality and great value.
