Can I trade without a registered trade mark?

It is possible to trade in the UK without a registered trade mark.

However, trading without registration comes with limitations and risks which should be understood before a brand is adopted or significant investment is made.

Trading without a registered trade mark

A registered trade mark gives its owner exclusive rights to use a name or logo in relation to specific goods or services.

If your trade mark is not registered:

• you can use the name or logo in the course of trade; however
• your legal protection will be more limited and there are certain risks to bear in mind.

In the UK, unregistered trade marks are not protected by statute. Any protection will usually rely on the common law concept of passing off.

What protection is available without registration?

To succeed in a passing off claim, it is generally necessary to show:

1. that the business has acquired goodwill under the relevant name or sign;
2. that another party has made a misrepresentation leading the public to believe there is a connection between the businesses; and
3. that this has caused, or is likely to cause, damage.

In practice, this can be difficult to establish, especially for newer businesses or brands with limited market presence. Passing off claims are also often more costly and uncertain than claims based on registered trade marks.

A registered trade mark provides a clearer right and is usually easier to enforce.

Risk of infringing third-party rights

Another important risk is that, if a brand is adopted without carrying out clearance searches, it may infringe existing third-party rights.

This could include:

• earlier registered trade marks; or
• unregistered rights acquired through prior use.

If an infringement issue arises, this may lead to cease and desist correspondence, the need to rebrand, or in some cases even legal proceedings. Carrying out clearance searches at an early stage helps identify potential conflicts before a brand is launched or marketing costs are incurred.

Other practical risks

Trading without a registered trade mark also carries the risk that:

• another party may register the same or a similar mark in the future;
• enforcement against copycats may be difficult; and
• the commercial value of the business may be reduced, particularly in the context of investment, licensing or sale.

When should registration be considered?

Registering a trade mark is strongly recommended in most cases at early stages.

A registered trade mark provides a clear and enforceable right, reduces the risk of disputes, and makes it significantly easier to prevent third parties from using the same or a similar brand. It also helps avoid situations where a business is forced to rebrand after time and resources have already been invested.

From a commercial perspective, registered IP is often expected and can materially affect the value of a business.

For these reasons, while trading without a registered trade mark is possible, it is rarely the preferred option. Early registration, supported by appropriate clearance searches, is usually the most effective way to protect a brand and reduce risk.

At Briffa, we help businesses protect their brands around the world. If you need advice on how to protect your brand, please drop us an email or give us a call and we will be happy to arrange a free consultation with one of our specialist IP lawyers.