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Success and rest
don't sleep together – Russian Proverb |
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unregistered trademark
Does an unregistered trademark
give any protection?
If you have an unregistered trademark you will have to rely on your common
law rights (and not statutory rights as is the case with a registered
trademark) to prevent a third party from using an identical or confusingly
similar mark. This remedy is known as an action for passing off. In order
to succeed in a passing off action you need to prove the following:
- You have goodwill and a reputation
- Your opponent has made a misrepresentation in the course of trade
- You have suffered consequential damage
The above requirements are notoriously difficult and can be extremely
expensive to prove. Consequently passing off actions are generally far
more costly to litigate than trade mark
infringement actions. Furthermore, and more importantly, if you do not
have a reputation (as is the case with many small to medium sized companies)
you cannot succeed in an action for passing off. In other words no reputation
means no protection. |
