No trademark registration? Still have rights if using name commercially. "Passing off" protects established brands. But proving use = expensive. Registration costs €1,800. Litigation proving unregistered rights = €50K+.
Passing Off Requirements
Must prove: (1) Goodwill/reputation in market. (2) Misrepresentation by infringer. (3) Damage to your business. Evidence: Sales records, marketing materials, customer testimony, press coverage.
Geographic Limitations
Unregistered rights = territory where actually trading. Operate only in Germany? No protection in France. Registered EU trademark = 27 countries immediately. Geographic expansion requires proving new territory use.
The Evidence Burden
Registered trademark: Certificate = proof of ownership. Unregistered: Compile years of invoices, contracts, advertisements, social media. Discovery = months of document gathering.
Priority Date Uncertainty
First use date = critical but disputable. Competitor claims earlier use. Your evidence: 2018 invoice. Their evidence: 2017 Instagram post. Court decides. Registered trademark priority = filing date (certain).
The Senior User Advantage
Unregistered use since 2010. Competitor registers trademark 2020. Your senior unregistered rights can defeat their registration. But expensive litigation required. Pre-emptive registration = cheaper.
EU vs UK Divergence
UK: Strong common law "passing off" tradition. EU: Weaker unregistered rights (civil law tradition). Post-Brexit: Different protection levels. Register both jurisdictions for certainty.
The Registration Timing
Used name 5 years unregistered. Competitor files identical trademark. Your unregistered rights may block their registration but requires opposition (€5K legal fees). Registration costs €1,800. Prevention cheaper than cure.
Trademark Lens checks registered trademarks - unregistered rights require separate market research to identify conflicting prior users.