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UK Trademark Registration & Brand Protection - Unregistered Trademarks

Updated on October 5, 2012

The Law Of Passing Off

A trademark is a valuable asset, which is the primary means by which customers recognize your business's products. If you have not registered your trademark then you are running considerable risk of another party taking advantage of the hard work you have put into building up the reputation of your brand.

If you have not registered your trademark, and the worst happens, it may still be possible for you to take action against another party who is using your trademark without your permission. In the United Kingdom, you will need to rely on an unwritten Judge-made law known as “passing off”. This is often referred to as "palming off" in the USA, and unfair competition elsewhere. Not all countries offer protection for unregistered trademarks. For example, unregistered trademarks are not recognized in Czech Republic, France, Italy and Portugal.

Unlike the law relating to registered trademarks, the UK law of passing off is not governed by any Act of Parliament, but has been developed by the courts over many years. The modern law of passing off has been expounded in a number of cases, the most recent of which are the decisions of the House of Lords in Reckitt & Colman Products Ltd. v Borden Inc. [1990] RPC 341, and Erven Warnink BV v J Townend & Sons (Hull) Ltd. [1979] AC 731.

Although passing off and the law of registered trademarks deal with overlapping factual situations, they deal with them differently. Passing off does not confer exclusive rights to any names or logos. Nor does it recognize them as property. Instead, the law of passing off is designed to prevent misrepresentation in the course of trade to the public.

Passing off can occur by somebody using the same or similar trademark as yours, by adopting the same or similar “get-up” or appearance as that of your product, or by implying to the public that their goods or services are connected with yours.

In order to establish passing off, there are three elements, often referred to as the “Classic Trinity”, which must be proved, namely:

  • the goods or services sold under your trademark must have acquired goodwill or a reputation in the market;

  • there has been a misrepresentation by the other party, which need not be intentional, which has caused, or is likely to cause, the public to believe that its goods or services are actually yours. This requires that the trademark complained of must be sufficiently similar to the trademark of the claimant for a customer to be deceived; and

  • you have suffered, or are likely to suffer, damage as a result of the erroneous belief caused by the other party's misrepresentation. This means establishing actual or likely financial loss.

The existence of the above three elements must be proved in court by evidence, so that a passing off action carries a high evidential burden. Passing off can only protect trademarks that are in use and have acquired a reputation in the UK. Accordingly, passing off cannot be used to protect any trademark that is new, has little reputation, or where no trade in the UK has taken place. If you do not have a reputation, as is often the case with many small to medium sized businesses, you cannot succeed in an action for passing off. In other words no reputation means no protection. Due to the things that must be proved in order to establish a passing off claim, it is often difficult, and as a result, expensive to prove a passing off action.

If a passing off claim is successful, the remedies available include damages, or a claim on the profits of the infringer. The court may grant orders to stop the infringer continuing to use the trademark or 'get up', and you can ask for delivery up or destruction of any infringing products.

If you suspect that a competitor is passing off their products or services as yours, it is important that you seek advice immediately. If you delay, it can become more difficult to take effective action. If you register your trademark, your rights as a trademark owner will be much more certain. It is also much easier and cheaper to take legal action with a trademark registration. This allows you to take legal action against infringement of your trademark, rather than using passing off.

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