In the field of business, both ethics and law teach us that we should be original in our business ideas and especially be careful when it comes to selling products that are like someone else’s. There are countless products that are based on common designs and do not really have protection in terms of design patents, etc. However, there are countless cases where companies innovate to create products that are uniquely theirs.
As it happens, some of them tend not to apply for patents but their presence has been in the market for such a long time that the products they make become associated with them. In such a situation, there is a special condition applied which is called unregistered trademark. The infringement of unregistered trademark has become a big problem recently, so you need to know what infringement of unregistered trademark is and what protection it provides.
How Does Infringement of Unregistered Trademark Work?
To understand how the entire concept works, we need to understand the value of a trademark and how the law treats it. By default, if an infringement happens on a product with an unregistered trademark, there is nothing that can be done. This is because the product does not have any legal grounds to claim that it is protected by law in any way and no registration means anyone can do it.
However, in the Common Law, there is a specific condition that recognizes infringement of unregistered trademark and it is called “Passing off.” That means the new product coming in the market looks suspiciously similar to the original one and they may even have used the same name with a slight change. This could easily confuse a customer who is not paying attention and he or she could end up purchasing the alternative product thinking that they bought the original one. Even if they were providing much better quality than the original, it would still be considered an infringement of an unregistered trademark since they are using the fame of the original product and passing theirs off as an original in front of unsuspecting customers.
Conditions Determining the Extent of Infringement
The decision to call a particular case an infringement of an unregistered trademark depends entirely on the circumstances. There are no real predetermined criteria, and the decision is usually based on human judgment of the evidence shown by the suing party. There are, however, a few general circumstances that the court considers when making a decision about the case.
- The level of proliferation that the original product had with the unregistered trademark was operating in the market and its popularity overall. The more popular and widespread a product is, the more chance there is for people to mistake a copy for the original product.
- The level of similarity in the names of the two products. If it can be clearly distinguished without any effort, then there is a chance that the infringement of an unregistered trademark may not apply. However, the opposite would be the case if the names are too alike to distinguish at first glance.
- The field in which each product belongs is also a factor. Sometimes the name of a product would be the same, but they would be operating in entirely different industries. In that case, an unregistered trademark may not be considered valid.
- The level of damage that the infringement of an unregistered trademark could be doing to the business with the original product is also a big factor.
You can easily figure out if such a situation would apply to your product by simply searching for product trademarks.