Can I Sue Someone for Selling Counterfeit Goods in California Without a Trademark?

Yes, you can sue for counterfeit sales in California even without a registered trademark. California Bus. & Prof. Code § 17200 and the Lanham Act § 43(a) protect unregistered brands.

Short answer: Yes. California Bus. & Prof. Code § 17200 and the federal Lanham Act § 43(a) both protect unregistered marks and trade dress. You don't need a registration certificate to take legal action — you need proof you used the mark first and the counterfeiter's use confuses consumers.

This surprises most sellers. They assume trademark registration is a prerequisite for enforcement. It isn't. Registration makes the process faster and damages higher, but the legal right to stop counterfeiting exists without it.

What protects you without a registered trademark

Two statutes do the heavy lifting:

> Lanham Act, 15 U.S.C. § 1125(a) — Covers unregistered trademarks and trade dress. Anyone who uses a false or misleading representation of fact in commerce can be sued for damages, profits, and injunctive relief. No registration required — just proof of prior use and likelihood of confusion.

California's unfair competition statute (Bus. & Prof. Code § 17200) goes further. It covers any "unlawful, unfair, or fraudulent business act or practice." Selling copies of your product under a confusingly similar brand name qualifies even if the word "trademark" never appears in your filing.

Common law trademark rights in California vest automatically when you start using a distinctive mark in commerce. The date on your first invoice, your first product listing, your first social media post with the brand name — that's your priority date.

What changes without registration

| Factor | With registration | Without registration | |--------|-------------------|---------------------| | Burden of proof | Presumed valid nationwide | You must prove prior use + consumer confusion | | Available damages | Statutory ($1,000-$2,000,000 per mark) | Actual damages + infringer's profits | | Geographic scope | Nationwide | Where you've actually sold | | Attorney's fees | Discretionary (courts often award) | Harder to recover | | Amazon Brand Registry | Eligible | Not eligible |

The practical difference: without registration, you can still send a cease and desist letter, file a lawsuit, and win. You just can't use Amazon Brand Registry, and proving your case in court takes slightly more documentation.

The cheapest path forward

Start with an attorney cease and desist letter ($150-$500 flat fee). The letter cites § 1125(a) and § 17200, demands the seller stop, and establishes your claim. If the seller ignores it, you have a documented trail for court.

Filing a trademark application while you pursue enforcement is smart — the $250-$350 USPTO fee (per class, TEAS Plus) buys you stronger tools for next time. But don't wait for registration to act. The counterfeiter is making sales today.

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This article is general information only and is not legal advice. Consult a licensed attorney for advice specific to your situation.