Acquiring a trade mark or passing off- which process is best for your brand?

It is a common misconception that you have no way of protecting a trade mark that you haven’t registered.

However, as you may not know, you can protect your mark being used by anyone else by a process referred to as passing off.

Passing off is a common law action which allows a party to prevent another using a specific mark if they can show they have developed ‘goodwill’.

A difficulty lies in quantifying goodwill. This is because levels of goodwill are subjective and reputation of your company alone is insufficient. The user would have to show they have a reputation, a clear degree of recognition and the public does associate the mark with the passing off claimer.

In addition to giving evidence of goodwill, the user will need evidence that the mark originated from them and the goodwill in it was harmed by the use of the third party.

This process is very time consuming and costly. This is due to the large amount of evidence needed to ensure a successful case.

As a result, it is advised that you protect your identity with a trade mark. This will protect your brand and ensures the process of protection is cheaper and simpler.

For more information contact The Trademarkroom today.

Anna Orchard

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