Trademark laws vary according to the jurisdiction in which the mark is registered, for example, U.S law is different to that of the EU law. In general both state common law and federal law apply to the regulation of marks. Although it is not necessary to register a mark, a registered mark provides the holder with greater legal protection and rights in comparison to unregistered marks. It is easy for owners of registered marks to bring a legal case under the applicable trademark law, against any unauthorized use of their mark provided they can prove a likelihood of confusion has occurred. Likelihood of confusion can include a direct similarity between the two marks in question, similarities between the goods/services involved, evidence of consumer confusion, strength of plaintiff’s trademark and the intent behind the defendant utilizing the mark.
Trademark law aims to protect both registered and unregistered marks from unauthorized or detrimental use provided the necessary evidence of loss is shown. Typically trademark infringement occurs where a registered mark has been adopted by another where as passing off occurs where another party has adopted your unregistered mark to pass off or represent certain goods/services as their own. Providing that passing off has occurred can be a time consuming, expensive and complex process so it is advised that companies and individuals who use a trademark have them registered at their earliest convenience. To prove passing off you must demonstrate that; you trade in the goods/services associated with the trademark, the public associate the mark with your goods/services, you have a solid reputation and act in goodwill, there is likelihood of confusion or deception if the trademark is used by another, and finally, that you have suffered loss as a result.
A registered mark holder has the right to bring a legal case against any person who has engaged in unauthorized use of their registered mark. Trademark laws allow for the mark holder to claim damages for loss or suffering caused by the defendant adopting their trademark provided proof of loss can be demonstrated. By registering your mark, you automatically gain greater legal protection in cases of infringement and counterfeit activity.
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