Unregistered Trade Marks in the UK: What Protection Do I Have?

The Importance of Registering a Trade Mark

Registering a trade mark for your brand name and/or logo when you establish your business is crucial. A registered trade mark grants you exclusive rights to the word(s) and/or logo in the specified territories, making it a significant asset. It serves as a powerful tool to prevent infringement and copying, and it holds substantial commercial value.

However, many businesses delay applying for a trade mark until much later, often only when a dispute arises over competing brand names. If you haven’t registered your mark yet, don’t worry—there is still time to register and some protection available in the meantime.

What Rights Do I Have Without a Registered Trade Mark?

If you have been trading under your brand name for some time without registering it as a trade mark, you may have acquired goodwill. Goodwill, often likened to a business’s reputation, is the attractive quality that brings customers to your business.

To establish goodwill, you might need to demonstrate that your brand is well-known, show relevant sales figures, highlight any awards or publications, and provide evidence of a social media following. If you can prove that you have goodwill in your mark, you may be able to rely on the laws of passing off.

Understanding Passing Off

Passing off occurs when one business unfairly capitalises on the reputation of another. To prove passing off, you must demonstrate the following:

1. You have reputation and goodwill in your mark.
2. The other business is misrepresenting their goods or services as being yours or associated with you.
3. This misrepresentation has caused, or is likely to cause, damage to your business.

Proving Goodwill and Reputation

To prove that you have goodwill and reputation for your brand, you would need to provide evidence such as:

• The goods or services your trade mark has been used for.
• Financial turnover from sales under the trade mark.
• Sales records showing the trade mark in use for these goods/services (e.g., sales invoices).
• Advertising materials that feature the trade mark.
• The duration and geographical area of the trade mark’s use.
• How the trade mark is displayed on goods/services (e.g., labels, signs, invoices, advertising materials).

With sufficient evidence of goodwill, you can protect your brand under the passing off laws, even without a registered trade mark.