Trade mark infringement occurs where a registered trade mark is used without the proprietor's consent and:
- The sign used by the infringer is identical to the registered trade mark and is used in relation to goods or services which are identical to those for which the trade mark is registered (section 10(1), TMA); and
- The sign used by the infringer is identical to the registered trade mark and is used in relation to the goods or services which are similar to those for which the trade mark is registered, or the sign is similar to the registered trade mark and is used in relation to goods or services which are identical or similar to those for which the trade mark is registered, and in each case there exists a likelihood of confusion on the part of the public, which includes a likelihood of association (section 10(2), TMA).
- The sign used by the infringer is identical or similar to the registered trade mark, the trade mark has a reputation in the UK, and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark (section 10(3), TMA).
Tests for infringement
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Identical sign |
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Identical goods |
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Identical sign |
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Similar goods |
+ |
Likelihood of confusion |
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Similar sign |
+ |
Identical goods or similar goods |
+ |
Likelihood of confusion |
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Identical or similar sign |
+ |
Any goods |
+ |
Registered mark has a reputation + use is without cause + takes unfair advantage/is detrimental to distinctive character/repute of mark |
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