If you’ve noticed that a competitor is using the same or a similar mark to the one you use or are planning to use and that they have not formally registered the trademark, and you’re wondering if it would be a good idea to beat them to the punch, in short, no. Trying to scoop up an unregistered trademark that your competitor is using won’t likely force them out of the marketplace the way you might think. Here’s why:
Even Without a Registered Trademark Your Competitor May Already Have Rights to The Mark
First, there are common law rights that attach to trademarks. If your competitor was the first to use a mark associated with a specific set of goods in a particular geographic area, even without having the registered trademark, your competitor will likely have priority rights of the mark regardless of the fact that you filed (or attempted to file) for the trademark first.
Further, if your competitor finds out you’ve filed, he or she will likely have grounds to contest your application before the United States Patent and Trademark Office. Additionally, your use might be limited by this competitors prior use.
Most important, your use of the trademark may potentially be an infringement on their rights. Just because a trademark is not registered does not mean it is available for use.
What to Do Instead…
Rather than try to use intellectual property loopholes to sabotage your competitor, we recommend focusing on ways to grow your brand and blow your competitors out of the water the fair way. Maybe there are opportunities to strengthen your own trademark and IP strategy to provide you with the competitive edge that you are looking for.
If you’d like to explore some of your options, please feel free to contact our trademark attorneys at 888-666-0062 to schedule a consultation.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.