Can I still protect my trademark if it is not registered?
The short answer is yes! However it is more difficult to prove than if you have a registered trademark.
If you don’t register your trade mark, you may still be able to take action if someone uses your mark without your permission, using the common law action of passing off.
To be successful in a passing off action, you must prove that:
- the mark is yours
- you have built up a reputation in the mark
- you have been harmed in some way by the other person’s use of the mark.
It can be very difficult and expensive to prove a passing off action.
If you register your trademark, it is easier to take legal action against infringement of your mark, rather than having to rely on passing off.