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All Questions in Trademark >> Unregistered Logo

Unregistered Logo

Posted by Anonymous . updated on 2/26/2009
I have a quick question.  If your logo is original art and does not get registered, do you still have rights to that logo and can display it next to your company name without any recourse?  Wouldn't this be considered copyright art and cannot be touched?

For instance: if it is a logo you use to place on a shirt for clothing, on a size tag, can you still put that on it if you do not or cannot get it registered?

thanks
Answers (10)
 
JSonnab...
Registration of a trademark does establish trademark rights.  In fact, until a mark (e.g., a logo) is used as a trademark, you cannot register it.

Similarly, the lack of a trademark registration does not impact your ability to use a logo as a trademark in any way.  For that matter, having a trademark registration doesn't necessarily mean you can use the mark, as counterintuitive as that may sound.

- Jeff
 
 
bradwall
Hey Jeff,

Thanks for your information.  I went to your website and could not find any information on fees for your services.  Please advise as I am interested in your services.

Thanks agan

MJ
 
 
JSonnab...
MJ -

I'd be happy to go over your matter with you by telephone.  Please feel free to call.

- Jeff
 
 
Alexand...
Quote
For that matter, having a trademark registration doesn't necessarily mean you can use the mark, as counterintuitive as that may sound.


What is meant by the above line?
 
 
JSonnab...
Quote
What is meant by the above line?

It means that you can go all the way through the tm registration process only to find that someone had begun using the mark prior to your date of filing.  If that's the case, you may be unable to use your mark even though you've registered it.

- Jeff
 
 
Inspired
After reading questions and answers regarding TMs, it appears they're slippery...for the logo artist to control.

Do I understand correctly? -- A logo must FIRST be USED before it can be REGISTERED?  

Does this also mandate that the entity with the money to USE THE LOGO first WINS the right to REGISTER the LOGO, even if that entity is not the maker/designer of the logo?  

What's a young artist with little business savvy and not much extra money to know when to get a lawyer?  

Thanks, Doc

 
 
Isaac
Quote
Do I understand correctly? -- A logo must FIRST be USED before it can be REGISTERED?


Sort of.  There is also an "Intent to Use" registration that serves to hold a place (temporarily) at the USPTO while you get started.   But if your intent is not to use the mark but to sell it to someone else, an ITU wouldn't be the way to go.?

Quote
Does this also mandate that the entity with the money to USE THE LOGO first WINS the right to REGISTER the LOGO, even if that entity is not the maker/designer of the logo?


Under US law a  logo unattached to a good or service just is not a trademark.   Your rights under copyright law may be enough to keep it from being used by others.
 
 
JSonnab...
There is no such animal as an "intent to use registration" (just like there exists no "provisional patent").  

The simple answer is, you are correct that a logo cannot be registered until it is used.  An ITU application will never mature into a registration -- and you have no trademark rights in the logo -- until you begin using it.

That doesn't mean you have no rights in a logo you created, oh, say, 33 years ago that's been adopted by a university, but your rights aren't TM rights, they lie in copyright.

- Jeff
 
 
Jeff Ma...
I have reason to believe my company is engaging in a number of unethical business practices.  I would like to give them a dose of their own medicine on my way out and register their unregistered logo.  Would doing so compel them to change it or pay me a royalty for the right to use it?  I was thinking there may be some precedent for "first use" within a geographical territory that would protect their right to it.  

Thank you

JM
 
 
Lyza
To Jeff Marchant,

I am not an attorney, but to my knowledge, what you are advocating is both illegal and unethical.  You must swear at the time of filing that to your knowledge no one else owns any rights in the mark for the same goods and/or services and that you are the sole owner.  Clearly from what you said, you cannot swear to that as it would be a lie.

Rights in a mark are established through use to offer goods and/or services and since the company has been using their mark in interstate commerce to offer theirs, your registration attempts would be doubtful and non-defendable if challenged by your soon-to-be former employer.  

I understand employment disappointment but I would recommend that success gained at another job is the best revenge and would have a better impact on you in the future.  Good luck.
 
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