Author: Violeta Sutkiene, Associated partner, Associated Partner, Head of the Trademark and Design Division at METIDA
In today’s market you can find both: trademarks registered under the legal regulations and unregistered trademarks. Trademarks tend to be associated with a particular manufacturer of goods or a service provider and help distinguish producers’ services or goods. In fact, this is the main function of the trademark. Trademarks can include words or collocations, surnames, names, artistic stage names, drawings, numbers, shapes, holograms, labels, colour combinations or any combinations of the aforementioned objects.
Proprietors of the registered trademarks are granted with exclusive rights to use the trademark and prohibit commercial use (without their consent) of any mark identical to their trademark for identical or confusingly similar services or goods. A trademark registration certificate is a document that grants these exclusive rights.
The trademark proprietors can not only safely make use of their trademarks and license others to use them, but also prohibit others to use similar trademarks for goods, services or products’ packages, as well as bring them to the market or warehouse, let lend and use them for this matter. They can also prohibit the import or export of goods marked by the similar trademark or its use in advertising or documents for commercial purposes.
However trademark registration is not compulsory, therefore, the trademark proprietor can decide whether to get the legal protection or simply use the mark in business without any intentions to forbid the use of the similar or identical trademark. The owner of the unregistered trademark has the right to use the trademark too, but often under restricted conditions, as this right is not the exclusive one. In other words, if the unregistered trademark that is identical or confusingly similar to the registered trademark leads to the dispute with its proprietor, who has the exclusive rights, the unregistered trademark use may be prohibited and probably the expenses caused by the infringement of rights will be required to be covered.
A name of the trademark often overlaps with legal entity’s name, especially if it is used in business management, company business, advertising services, construction and renovation business, logistics and trade. Trademark and legal entities’ names are separate industrial property objects performing different functions. The trademark identifies goods and services produced or provided by different business entities, while legal person’s name helps to identify different legal entities.
Before deciding to register the company, the Registrar of legal entities checks whether there are no previously registered companies with identical company or trademark names. Yet, the Registrar does not take into account the similarity between the names, thereby, the unregistered trademark proprietors cannot be always reassured that new legal entities will never have the names similar or identical to their company or trademark names. Thus, even though the trademark name is identical to the company’s name, it is still recommended to register the trademark, as in this way it will get wider legal protection.