Are there any advantages to having unregistered trademarks in North Carolina? While there are certainly many advantages to having a registered trademark, which we will discuss in another issue, many of our clients question if it's really necessary to have registered trademarks in Cary, NC. Today we'll discuss what it means to have an unregistered trademark in North Carolina.
Registered Trademarks are Recognized at a National Level
Should you register your trademark? In short, yes! Our advice is, and often will be, that you need to register your mark. Due to a mark appearing on the register, a registered trademark has the benefit of constructive notice on a nationwide level. In addition, owners of registered trademarks in Cary may also be awarded statutory damages for any willful infringement of their trademark.
North Carolina Offers Common Law Protection
Do you have to register a trademark with the United States Patent and Trademark Office (USPTO) in order to have trademark protection? The answer might surprise you as many States, including North Carolina, have statutes in place to protect your use of your trademark through common law which also references the unfair and deceptive trade practices statute. As such, while registered trademarks in Cary have obvious federal protection, it's not necessary to register your mark to be protected, at least not in the state of North Carolina.
Just like a registered trademark, an unregistered mark could be the name of your business, the logo that you use to identify your goods, and even a slogan that goes along with your goods or services – so long as they represent the quality of your goods or services.
Trademarks are also federally protected, even if unregistered
In addition to the protection provided by the States, the United States Congress has also enacted statutes to protect trademarks that are not fully registered with the USPTO.
In other words, there are federal statutes that protect the use of your trademark whether it is registered or not. In particular, 15 U.S.C. § 1125(a) creates a civil cause of action for claims of false designation of origin and false advertising. This means that if another person creates the belief that their goods come from your company through some confusing mark or by misleading the consumers through advertising into believing that their products are yours or come from the same place as yours, you are protected.
Protection is Limited to Your Geographic Area
Even if you choose not to register your trademark, you have a right to claim damages under these concepts, but only within the geographic areas where you operate.
For example, if you were the first person to use a certain mark in Cary, North Carolina and someone moves into that territory with a similar mark, then you have priority over the subsequent user of the mark. You are very likely able to stop the subsequent user, even if they are a larger company, but again, this is only in your geographic area, which is defined as the area in which you operated prior to anybody else using your mark.
You are Better Protected with a Registered Trademark!
If you have unregistered trademarks and you discover someone using a mark that is noticeably similar or that may be confusing your customers, contact us to consider registration.
While the application is making its way through the USPTO, our team of trademark attornies can send cease and desist letters to attempt to stop the infringement, even before your trademark is registered. We prefer to at least have the application in place prior to sending a cease and desist letter for a number of reasons, which we can discuss in your consultation.
Again, until your mark is registered, your protection is limited to the geographic area in which you operate. Once the mark is registered, you can take your case to federal court in most situations.
