Registering a trade mark doesn't guarantee you that your mark will never be infringed. However, it does give you exclusive rights to use the mark and to prevent its unauthorised use on goods and services that are identical or similar to yours.
Use trade mark symbols to claim your rights
When you register a trade mark in the UK, you can use the ® symbol to indicate that you own the mark. For unregistered trade marks, you may use the abbreviation TM.
The use of these symbols has no legal significance, other than showing to the public your claim of the trade mark rights. This in itself may help protect your rights and dissuade others from using the same or similar mark without your consent.
How do deal with conflicting trade marks?
If someone tries to register a trade mark that is identical or similar to yours, you can oppose, object or consent to the registration. The right course of action will depend on your specific circumstances. Find out more about objecting to and challenging trade marks.
What constitutes trade mark infringement in the UK?
Unauthorised use of a registered trade mark (or a confusingly similar sign) on competing or related goods or services may constitute trade mark infringement.
For infringement to occur, the use of the mark has to be:
- without consent of the registered mark owner
- in the course of trade, ie with a view to profit financially
- in the territory where the trade mark right is registered
Infringing acts may include:
- affixing the trade mark to goods or their packaging
- offering goods for sale or supplying services under the trade mark
- importing or exporting goods under the trade mark
- using the trade mark on promotional material or in advertising
Marks of confusing similarity
A mark doesn't need to be identical to one already in use to infringe upon the owner's rights. A confusingly similar mark may infringe registered rights if it:
- has caused or is likely to cause confusion, or mislead customers into believing that the goods and services originated from the registered trade mark owner
- damages or takes unfair advantage of the significant reputation of the registered mark (even if it’s used on dissimilar goods and services)
Dealing with trade mark infringement
In order to take action against infringement you must be able to prove that you own the trade mark right and that the infringing conduct is illegal. Typically, you will send the alleged infringer a 'cease and desist' letter before you embark on any court proceedings.
There are many options for dealing with trade mark violation, including:
- reaching licensing or coexistence agreements
- mediation, arbitration or settlement out of court
- applying for injunctions
- suing for damages or lost reputation and profits
Registered trade marks are arguably easier to defend than unregistered marks.
If you have an unregistered trade mark and someone steals it, you may be able to claim a right to it under the common law of passing off. Actions of passing off and infringement can sometimes be argued together in cases of registered trade mark violation. See more on passing off: definition, remedies and defences.
If you are concerned that someone is infringing your trade mark rights, you should seek prompt legal advice from a trade mark attorney or an experienced IP professional. Find a chartered trade mark attorney near you.
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