Can I Sue for Trademark Infringement Without a Registration?

The short answer, expanded

Registration is not a condition of trademark rights in the United States. It is a way of recording and strengthening rights that already exist because a business has used a name to identify its goods or services. An owner who never filed anything can sue, and does, under two bodies of law: section 43(a) of the federal Lanham Act, and Texas common law of trademark infringement and unfair competition.

What the owner gives up by not registering is not the claim but the head start. A registrant walks in with statutory presumptions of validity and ownership and with priority that reaches the whole country. The unregistered owner must prove each of those things from its own records and holds rights only where it has actually traded. In a local dispute between two Dallas businesses, that difference is often small. In a dispute with a company in another state, it can be decisive.

The federal claim: section 43(a)

Section 1125(a)(1)(A) of title 15 makes liable any person who uses in commerce any word, term, name, symbol or device, or any false designation of origin, that is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of that person with another, or as to the origin, sponsorship or approval of goods or services. The provision does not mention registration, and federal courts have long applied it to protect unregistered marks and trade dress.

Because the claim arises under the Lanham Act, it can be filed in federal court under 15 U.S.C. § 1121 regardless of the amount in controversy or the citizenship of the parties. Texas state law claims for the same conduct are joined with it. The venue question is discussed in where IP disputes get decided.

The Texas claims

The Texas Trademark Act, chapter 16 of the Business and Commerce Code, creates a statutory infringement claim in section 16.102 only for marks registered with the Texas Secretary of State. An unregistered mark owner does not have that claim. But section 16.107 says that no registration under the chapter adversely affects common law rights acquired before it, and Texas common law has long recognized claims for trademark infringement and unfair competition based on use alone. The elements track the federal ones: a protectable mark, priority and likelihood of confusion. The wider family of Texas claims is described in unfair competition and misappropriation claims in Texas.

What you have to prove

Three elements, each of which a registrant would have had help with.

A valid, protectable mark

The name must be capable of identifying your business as the source. Generic terms never qualify. Descriptive terms qualify only with secondary meaning, which is proved by the length and exclusivity of your use, your advertising and sales, media coverage, and evidence that customers associate the term with you specifically. Suggestive, arbitrary and fanciful marks are protectable from first use. A registrant has the benefit of § 1115(a), which makes the registration prima facie evidence of validity; the unregistered owner proves distinctiveness from scratch.

Priority

You must show that you used the mark in commerce before the defendant did, in the relevant market. The evidence is ordinary business records: the first dated invoice under the name, the first website capture, signage, advertising, the formation of the business and the launch of its services. Use must be genuine and continuous; a name used once at a trade show years ago and then dropped does not establish priority.

Likelihood of confusion

The same test applies to registered and unregistered marks. Courts weigh the strength of the mark, the similarity of the marks, the similarity of the goods and services, the overlap of customers and channels, the defendant's intent, actual confusion and purchaser care. The factors are set out in someone is using a name like mine: trademark infringement basics.

How far unregistered rights reach

This is the real cost of not registering. Common law rights extend to the geographic area where the mark is used and where its reputation reaches, and no further. A Dallas company known in Dallas–Fort Worth has rights in Dallas–Fort Worth. If a company in another state adopts the same name in good faith for the same services, each may own the mark in its own territory, and neither can stop the other where it was first.

A federal registration changes that. Under 15 U.S.C. § 1057(c), filing an application that matures into a registration is constructive use of the mark nationwide as of the filing date. Against anyone who adopts the mark after that date, anywhere in the country, the registrant has priority. The exception runs the other way too: a prior user keeps its rights in its own area even against a later registrant, under § 1057(c) and the prior-use defense in § 1115(b)(5), but it is frozen there. It cannot expand under the name into territory the registrant's constructive use now covers.

Registered and unregistered marks, side by side

The remedies are the same

Section 1117(a) of title 15 applies to violations of § 1125(a) as well as to registered marks. A prevailing plaintiff may recover the defendant's profits, its own damages and costs, subject to the principles of equity, with the court able to increase damages up to three times and to award attorney's fees in exceptional cases. Section 1116(a) provides the injunction, with a rebuttable presumption of irreparable harm once a likelihood of success is shown. The unregistered owner also avoids one trap: § 1111's requirement of the registration symbol or actual notice before profits and damages can be recovered applies only to registrants. Remedies are covered in remedies in a trademark case under the Lanham Act.

Example

Suppose a Dallas pet grooming business has operated as Bluebonnet Paws since 2018, with a steady local following and no registration. In 2026 a grooming franchise opens two locations in Fort Worth and Arlington under the name Bluebonnet Pups, with a similar logo and the same services. Customers begin asking the Dallas owner whether she has expanded.

The Dallas owner can sue under § 1125(a) in the Northern District of Texas, with a Texas common law claim joined. She must prove that Bluebonnet Paws is distinctive for grooming services, which it is, being arbitrary as applied; that she used it first in Dallas–Fort Worth, which her 2018 invoices and website show; and that confusion is likely, which the customer questions support. She can obtain an injunction covering the metropolitan area where she is known. She would have difficulty stopping the same franchise from using the name in San Antonio, where she has never traded. Had she filed a federal application in 2018, her constructive use date would have reached San Antonio too.

Should you register now, even mid-dispute?

Usually yes, and it is common to file an application at the same time a demand letter goes out. The application does not help with the dispute already under way, because the other side's use predates the filing, but it fixes a constructive use date against everyone who comes later, it begins the clock toward the presumptions of § 1115(a), and it signals seriousness. Registration on the Principal Register takes months at a minimum, and an application can be opposed, so it is not a shortcut in the current case. The USPTO's process is described at uspto.gov/trademarks.

A Texas state registration under chapter 16 is quicker and less expensive, gives the statutory claim in section 16.102 with its treble damages and fee provisions for knowing infringement, and is sometimes the right first step for a business whose market is entirely within the state. It does not give nationwide priority.

The risks to weigh before filing suit

• The other side may already have filed. If the defendant applied for a federal registration before your dispute, its constructive use date may give it nationwide priority outside your existing area, and the case becomes a fight over territory rather than over the name.
• A descriptive name needs secondary meaning. Without a registration, there is no presumption to lean on, and the evidence of secondary meaning has to be built from your own records and, in a contested case, from a survey.
• Priority evidence must exist. Businesses that have replaced their websites and purged old files sometimes cannot prove when they started using the name. Gather the records before writing.
• Delay cuts against you. The Lanham Act has no limitations period of its own, so courts apply laches, asking whether you waited unreasonably after learning of the other use and whether the defendant was prejudiced.

The decision in practice

An unregistered owner with a distinctive name, dated proof of first use and a defendant in the same market has a sound case and should not be put off by the absence of a certificate. An unregistered owner with a descriptive name, thin records and a defendant across the country has a hard one. The analysis of which case you have is the work of the first two weeks, and the result of that analysis decides whether the next step is a letter, a filing or a registration and a coexistence proposal. Tina Wysk represents Dallas businesses enforcing and defending registered and unregistered marks in state and federal court; the practice is described at intellectual property disputes.