Registering a trade mark vs. using your brand: why both matter in the UK

What does “using your brand” mean?

Using your brand means actively providing your products and services under the relevant name/logo/slogan, in the course of trade. Your brand is the name/logo/slogan under which you operate in the marketplace: on your products, websites, marketing materials, packaging, social media, and more.

For more information on how to identify the key elements of your brand, see our previous article here.

In the UK, consistent use of a brand can create what is known as common law rights. Passing off is a common law tort that seeks to protect unregistered trade marks based on goodwill that has developed through use. However, enforcing unregistered trade marks can be more difficult and more expensive than enforcing registered trade mark rights.

Using your trade marks is also important as registered trade marks can be put to ‘proof of use’ once they reach a certain age (usually once they are 5 years old post-registration). It is therefore imperative that you use your registered trade marks, and that you document this use, so that you can successfully defend and enforce your registered trade marks.

Why using your brand matters

• Building goodwill: The more customers recognise and trust your brand, the stronger your position if disputes arise.
• Legal protection through passing off: Even without registration, you can likely stop others from misusing your trade marks if you can prove, inter alia, that you have goodwill within the relevant trade mark, and that there has been some form of misrepresentation.
• Market presence: Ongoing use signals to customers and competitors that your brand is active and valuable.
• Registered trade marks: Use of your registered trade marks will help you enforce and defend these registrations.

What does “registering a trade mark” do?

Registering a trade mark with the UK Intellectual Property Office (UKIPO) gives you statutory legal rights that are usually easier (and cheaper) to enforce than relying solely on use.

In the UK, a valid registered trade mark gives you:

• Exclusive rights to use the registered mark in connection with the registered goods and/or services.
• The ability to potentially stop others from using identical or similar marks, in relation to identical or similar goods and services.
• The option to license or sell your trade mark as an asset.
• A mark registered for 10 years, renewable indefinitely (presuming all fees are paid and that it is not successfully ‘attacked’ by a third party).

Why both using and registering are important in the UK

1. Registered trade marks provide stronger legal protection.
2. Registering early protects against copycats.
3. Use is required to maintain your registered trade marks.
4. Use creates common law rights for unregistered trade marks.
5. Use helps build brand value and reputation.

Practical steps for UK businesses

• Conduct searches before adopting a brand to avoid conflicts.
• Register your trade mark as early as possible.
• Use your trade marks consistently and keep records of how they are used.
• Monitor your marketspace for potential infringers/conflicts.
• Enforce your rights promptly to maintain strength and prevent dilution.
• Renew your registered trade marks every 10 years and ensure you use them genuinely in the UK.

Conclusion

For UK businesses serious about brand protection, the best strategy combines consistent use with timely registration. This dual approach offers maximum security, enabling you to defend your brand effectively and grow your business with confidence. If you have any further questions, we recommend that advice is sought from one of our trade mark attorneys as soon as possible.