You do not have to have been using your mark prior to a trade mark application. The exception to this however is where the proprietor is required to show that a non-distinctive mark has become distinctive through use. However, if the mark is not in use, the applicant must have a bona fide intention to use it and the application form must contain a statement by the applicant that the mark is either in use or there is a genuine intention to use it.

Therefore, the best time to apply for registration is at the development stage of a new product and certainly prior to its launch. This ensures not only that the application is well on its way to registration by the time the product is on the market, but also pre-empts any third party who applies for the same or a similar mark, since the pending application will be cited against any such subsequent application. Pending applications should also be revealed during any trade mark searches of the Register and therefore will help prevent accidental or coincidental adoption of the mark by another company.

By Jane Coyle

Jane can be contacted at: Jane@trademarkroom.com