September 19, 2022

Enforcing IP Rights Without a Patent or Trademark

By Timothy Shields.

Are you an inventor and have not yet patented your product?  

Do you use a particular name or image to sell products or services and have not yet registered a trademark? 

Here we will explain some considerations regarding patent and trademark protection. 


Patent protection is currently based on who is “first to file,” which means that the first person to file a patent will obtain rights to the patent. So, if you have an invention and want enforceable patent rights, get to filing quickly! It may be wise to contact a patent attorney to determine if you meet the criteria for patent protection. 

If, however, you have not filed for a patent and you see that someone is using your invention and falsely claiming rights as the inventor, you may be able to protest, depending on whether you are a party who will be affected if the patent is granted. This approach could at least show the patent office that the person who is trying to obtain the patent does not in fact have the right to do so.  


Compared with those who do not have a registered patent, those who do not have a registered trademark have a better chance of enforcing rights. For example, if you sell goods or services,  

are you using a name, phrase, or symbol and associating it with your business? If so, you may have what is called a “common law” trademark. Although registering a trademark with the USPTO will give you the right to enforce trademark rights throughout the United States, common law rights will give you a small scope of protection: namely, enforcement of rights in the immediate area in which you conduct business.  

The biggest takeaway: although some rights are available for those who do not hold trademarks, if you want the greatest scope of protection in either the patent or trademark landscape, it is best to go ahead and file at the USPTO. For assistance with your filing or if you want more information about intellectual property rights, consider contacting one of our intellectual property attorneys.  

Timothy Shields is a Partner at Kelley Kronenberg, focusing his practice on Technology, Data Privacy, and Social Media Representation. Tim serves technology companies as general counsel for a flat monthly rate based on the company’s needs starting at $1300/month.

Contact Timothy Shields at:
Phone: 833-830-HELP (4357)

DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.