Written by Charlotte Owens | March 31, 2023
Trade marks are a valuable asset for any business as they help to establish brand identity and reputation in the market. A trade mark can be a logo, symbol, word, phrase, or combination thereof, which is used to distinguish a business’s goods or services from those of its competitors. In the UK, the registration of a trade mark is not mandatory, but it can provide a business with several benefits. However, what protection is available for unregistered trade marks in the UK? Let’s explore.
What is an unregistered trade mark?
An unregistered trade mark is a mark that a business uses to distinguish its goods or services from those of its competitors, but it has not been registered with the UK Intellectual Property Office (UKIPO). In the UK, unregistered trade marks are protected under common law, which means that a business can rely on its use and reputation to prevent others from using a similar mark in connection with similar goods or services.
Protection of unregistered trade marks in the UK
Unregistered trade marks in the UK are protected under the common law of passing off. Passing off occurs when a business misrepresents its goods or services as those of another business, causing confusion among customers and potentially causing damage to the reputation of the other businesses.
If a claim for passing off is successful, the business may be entitled to remedies such as an injunction to stop the other business from using the infringing mark, damages to compensate for any losses suffered, or an account of profits made by the other business as a result of using the infringing mark.
Advantages and disadvantages of unregistered trade marks
An advantage of using an unregistered trade mark is that there are no registration fees involved, and it can provide a basic level of protection before registration. Also, as the reputation of the mark grows, it becomes more difficult for others to use a similar mark in connection with similar goods or services. Additionally, if a business is unable to register a mark because it does not meet the requirements for registration of the trade mark, an unregistered trade mark may still provide some level of protection.
However, unregistered trade marks mainly come with disadvantages compared to registered trade marks. For example, the protection provided by an unregistered trade mark is limited to the geographic area in which the business has used the mark and developed its reputation. Also, it can be more difficult to enforce the protection of an unregistered trade mark compared to a registered trade mark. Furthermore, unregistered trade marks are likely to not be as effective in preventing other businesses from using similar marks or registering similar marks.
Should I get a registered trade mark?
A registered trade mark can be a very valuable asset to have and provides businesses with several advantages, including establishing brand identity and reputation in the market. A trade mark can help customers identify a business’s goods or services and distinguish them from those of its competitors. It also enables businesses to protect their brand against infringement and misuse by other businesses.
Trade marks can also help businesses build customer loyalty and trust, as customers tend to associate certain qualities and characteristics with a particular brand. Moreover, trade marks can have significant commercial value and can be licensed or sold to generate revenue for the business. Overall, trade marks are a valuable asset for businesses that can provide them with a competitive edge in the marketplace.
To summarise, while registration of a trade mark provides a business with stronger protection, unregistered trade marks can still provide some level of protection in the UK under the common law of passing off, however to a lower degree compared to its registered counterpart.
It is important to note that the protection provided by an unregistered trade mark is limited. As such, businesses should carefully consider the advantages and disadvantages of using an unregistered trade mark versus a registered trade mark.
Our expert trade mark lawyers are here to help guide you through the trade mark process. If you would like to arrange a 30-minute free consultation to discuss protecting your brand, please get in touch.
Written by Charlotte Owens – Solicitor
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