A trade mark is a sign that is used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade1. The concept of trade mark ‘use’ is relevant to questions such as who owns a trade mark, whether a mark is distinctive, whether there has been honest concurrent or prior use of a mark, whether a mark has been infringed and whether a mark should be removed from the Register for non-use.
The key to maintaining brand protection is to ensure that what you are actually using as your brand correlates to what you have registered as a trade mark. In short, you must register what you use and continue to use what you register. Failure to do so may expose you to a number of risks:
you may not be able to prove that your mark is distinctive on the basis of use when applying for registration;
you may not be able to establish honest concurrent or prior use as a justification for registration;
your chances of bringing a successful claim for infringement are reduced, allowing other businesses to promote their goods and services using your mark; and
your registered mark may be removed from the Register for non-use.
