Trademarks and passing off

If you have not registered your trade mark you may still be able to take action against someone who uses your mark on his or her goods or services without your permission, using the common law of passing off.

To be successful in a passing off action, you must prove that:

1. the mark is yours
2. you have built up a reputation in the mark
3. you have been harmed in some way by the other person’s use of the mark

It can be very difficult, and as a result, expensive to prove a passing off action. If you register your mark, it is easier to take legal action. This allows you to take legal action against infringement of your trade mark, rather than using passing off.  Due to the points raised above it is often even more difficult for start ups to claiming passing off for a trademark. So the moral of the story- register your trademark- especially if you have a new business.