Summary: Without a trademark registration, a business must rely on common law rights, which are not as strong, and also lacks the other protections afforded by USPTO trademark registration.
What happens if you don’t register your business’ trademark? If you’re using a trademark without a registration, the business has what’s called common law rights. However, common law rights are limited in several ways. One key way is that they might be limited geographically. If the business has a limited geographic imprint, and you’re relying on common law rights, that means your rights are limited to the geographic area where you’ve done business, and you may have no right to stop somebody else from using a similar or even identical name for similar or even identical products or services in another part of the country.
If you don’t have a registered trademark, you’re not in the USPTO’s database, so you’re not in the primary place that the USPTO and trademark lawyers representing other clients go to search when they’re clearing and filing other marks. So you’re missing out on that huge opportunity to be easily found and hopefully avoid conflicts before they even rise.
It’s harder to enforce an unregistered trademark because you don’t have the same rights in court. You don’t have the power of the USPTO and that ® behind it, and therefore it’s more likely to be difficult to stop somebody else. At a minimum, it’s more likely to be more complicated, more time consuming, and more expensive to stop somebody else.
These are the main reasons why there is a big risk of not registering a trademark, and yet, despite that risk, there are millions of businesses operating in the United States today that do not have registered trademarks. This is a lost opportunity for an investment in building the brand, and it’s also like a lost form of insurance to help secure that brand at a relatively low cost. Yes, there’s an investment in protecting it, but that investment has a huge return on the investment, ROTI. We call it return on trademark investment.
