Can I use a trademark without registering it?
Asked by: Felipa Bradtke | Last update: February 3, 2026Score: 5/5 (62 votes)
Yes, you can use a trademark without registering it, gaining common law rights limited to your geographic area of use, but federal registration provides significant advantages like nationwide protection, presumption of ownership, and easier enforcement, making it highly recommended for stronger brand security. You can use the "™" symbol (for goods/services) or "℠" (for services) to indicate an unregistered claim, but the "®" symbol is only for federally registered marks and using it otherwise is illegal.
Can you trademark something without registering it?
Although federal registration of a trademark is not mandatory, it has many advantages over common law trademark rights.
Can I use a trademark before registration?
Although you don't need to use your mark in commerce before filing an application, you must show actual use of your mark in commerce by filing documents and paying additional fees within certain time frames before your mark may register.
Can I use TM if not registered?
The TM symbol can be used any time to indicate an unregistered mark associated with goods for sale. It can be used prior to filing for registration, while an application is pending, and even after the USPTO has denied registration.
Can you have unregistered trademarks?
An unregistered trademark, or common law trademark, is a mark that has not been registered but still carries trademark protection based on usage. Businesses acquire rights simply by using a mark in commerce, but protection is limited to the geographic area where it is actively used.
Can You Use a Trademark Without Registering It?
What happens if I make a trademark and never use it?
Under both federal law and in New York courts, a trademark is presumed abandoned after three consecutive years of non-use. That signals the mark no longer identifies your business. If you stop using it, others can step in, register it, and use it. Your legal protection disappears.
Can someone steal my logo if it's not trademarked?
If your logo is registered with the USPTO (U.S. Patent and Trademark Office), you have a strong legal foundation to stop others from using it. But even without registration, you may still have common law rights if you've been using the logo consistently in commerce.
Can I use a trademark that has been abandoned?
If the mark has been abandoned for three to five years, odds are, you're in the clear. That's the span that the USPTO requires trademarks to be maintained, meaning if the proper paperwork hasn't been filed, it's potentially up for grabs.
Is it better to trademark or LLC?
An LLC (Limited Liability Company) creates a legal business structure that separates personal and business assets for liability protection, while a trademark protects your brand identity (name, logo, slogan) to prevent consumer confusion, with an LLC being the foundation and a trademark securing your brand's unique identifiers, serving different but complementary roles in business formation and protection. You usually form the LLC first as the legal entity and then register a trademark to protect your specific brand name and logo used within that business.
What are the three requirements for trademark?
In order to register a trademark, the trademark must meet three requirements: first use in a particular trade or geographic market, non-functionality, and distinctiveness. Generic words, even if stylized or foreign, cannot be registered as trademarks.
Can you use a trademark if it is pending?
Businesses can use marks while trademarks are pending, and doing so may be best. However, anyone who wishes to create and use a trademark should research carefully to ensure that the mark is original.
What are the 7 types of trademarks?
There isn't one definitive list of exactly seven types, but common categories focus on the nature of the mark (Word, Logo/Device, Shape, Color, Sound, Scent, Motion/Pattern) and the strength/function (Fanciful, Arbitrary, Suggestive, Descriptive, Generic, Service, Certification, Collective). Key types include Word Marks, Device Marks, Service Marks, Certification Marks, Sound Marks, Shape Marks, and Color Marks, often grouped under broader categories like "Unconventional" or "Non-Traditional" trademarks.
How much does trademark registration cost?
The USPTO prefers that applicants file electronically through the Trademark Center (formerly known as the Trademark Electronic Application System or TEAS). The cost of filing an application online is $350 for a business name in a single class of goods and services.
What is an unregistered trade mark?
An unregistered trademark or common law trademark is an enforceable mark created by a business or individual to signify or distinguish a product or service. It is legally different from a registered trademark granted by statute.
Can you lose a trademark if you don't enforce it?
You did the work, filed the paperwork, and finally got the green light from the U.S. Patent and Trademark Office. But what happens next matters even more. If you don't defend that trademark, you could slowly lose the legal protection you worked so hard to secure.
Is it better to get a TM or a copyright?
Neither trademark (TM) nor copyright is inherently "better"; they protect different things, so the best choice depends on what you're shielding: trademarks protect brand identifiers (logos, names, slogans) for infinite duration with use, preventing consumer confusion, while copyrights protect original creative works (books, art, music, code) for life plus 70 years, preventing unauthorized copying. Often, you need both, like a trademark for your company logo and copyright for the artwork within that logo, to fully protect your brand and creative assets.
What comes first, trademark or registered?
If you want to claim a mark as your own before it has been officially registered, you can use the trademark symbol if you sell goods, ™, or the service mark symbol if you sell services, SM. You can use these even if you have not filed an application to register your mark.
What names to avoid for LLC?
You should avoid LLC names that are misleading, offensive, too similar to existing brands, or use restricted words like "Bank," "Trust," or "Insurance" without proper licensing; also steer clear of implying government affiliation or illegal activity and names that are hard to spell or remember, as these can cause legal issues, confusion, or hinder branding.
What is stronger, TM or R?
Legal Protection: The ® symbol provides stronger legal protection than ™. It gives you the right to sue for trademark infringement if someone else tries to use your registered trademark without permission.
Can I use TM without registering?
Businesses may use the ™ symbol (note that service businesses use an SM symbol) to indicate that they consider a mark to be their trademark, even if it is not registered. This symbol provides notice to others of your claim of exclusive rights to the trademark.
Can I buy a dead trademark?
When a trademark is “dead,” it means that anyone can use it without fear of legal repercussions from the original trademark owner. A Dead Trademark is generally available for anyone else to register, making it an opportunity to take ownership of an old, inactive logo or phrase.
How long can a trademark go unused?
How long do trademarks last? The length of a federal trademark registration term is 10 years, but trademarks can potentially last indefinitely. Unlike patents and copyrights, trademarks do not expire after a set period of time.
What is the 3 month rule for copyright?
The "copyright 3 month rule" refers to a key deadline for U.S. copyright registration: you must register your work within three months of its first publication (or before infringement begins) to be eligible to claim statutory damages and attorney's fees in a copyright infringement lawsuit, which can be crucial for remedies beyond just an injunction. Failing to meet this deadline means you generally can only sue for actual damages (harder to prove) if infringement occurs, but registration is still vital for other benefits and to sue at all, notes Donahue Fitzgerald LLP and Cotman IP.
Can I put a Nike logo on a shirt for personal use?
Keep in mind that a trademark is different from copyright and offers protection to words, phrases, symbols, and designs that identify goods and services like Nike's “swoosh” or their slogan “Just Do It.” Using a trademarked logo without permission, even if it's for personal use, can also result in legal issues.
Can I sue if someone uses my trademark?
To support a trademark infringement claim in court, a plaintiff must prove that it owns a valid mark, that it has priority (its rights in the mark(s) are "senior" to the defendant's), and that the defendant's mark is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or ...