Unregistered Trademarks

Unregistered trademark is a mark that is not benefited by trademark protection through trademark registration. Unregistered trademark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be rationally expected to expand. Pursuant enforces these trademark rights by passing off. There are laws for unregistered trademarks to gain protection, where the services and goods must have a highly significant position in the market for sales in that particular class of goods and services.

Unregistered trademark are found in a large number and hence the trademark applicants perform searches of the registered trademarks. These searches are performed by companies preceding to an application. Passing off is a cure for a business that is been trading under unregistered trademark.

Unregistered trademark infringement

The unregistered trademark cannot be infringed as the owner cannot bring the infringement proceedings, which is well known as unregistered trademark infringement.

Trademarks Act 2002 prohibits the owner of an unregistered mark from bringing proceedings for infringement, the owner still has rights under the tort of the Fair Trading Act. A passing-off action is brought to protect against inequitable competition between traders. In particular, the law on passing off is concerned with misrepresentations made by one trader, that damage the kindness of another trader.

In order to succeed in a passing-off action, a plaintiff must prove that

• It has reputation in its trademark in relation to its goods or services;
• The defendant's actions misrepresent the origin of the defendant's goods or services to customers.
• The applicant has suffered loss as a result of the defendant's actions.