Any business which uses either a name or a logo which distinguishes it from the businesses of others has an unregistered trade mark. However, many businesses regard registering that trade mark as something which they will "do tomorrow" but in delaying the registration of a trade mark or not doing so at all will the business lose out?

Registering a trade mark strengthens the protection afforded to a business name or logo. If you have a registered trade mark and someone else is trading using a similar or identical unregistered mark, it can be relatively simple to prevent them from doing so. The first step is always a letter asking them to cease using such a mark but, if necessary, this can be followed up with an application to Court for an injunction to force them to do so.

Does this mean that an unregistered mark has no protection? The simple answer is no. If another business trades under an identical or similar unregistered mark, it is still possible to stop them from doing so. However, assuming that an initial letter does not convince them to cease using the mark, it is much more difficult to successfully persuade a Court to grant an injunction.

You would have to demonstrate to the Court that you have an existing reputation (or "goodwill") in the mark, that the other business' use of their similar mark is causing confusion to your customers or potential customers and that you have suffered loss. With unregistered marks, it is much more difficult to obtain an injunction, particularly if the other business is not within a close geographical area. A key advantage of having a registered trade mark is that there is often no need to demonstrate your reputation in the mark or that you have suffered loss or even that the other business is in the same geographical area.

Lee & Priestley is able to assist business and individuals with trade mark registration (both in the UK and the European Union) and enforcement. Please contact a member of the Intellectual Property team for more details.

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