Can you prove you have used it? Why evidence of trade mark use matters

A common misconception about trade marks is that registration alone secures indefinite protection of a brand. In reality, trade mark rights are subject to an important public policy principle: if a registered mark is not genuinely used, it can be revoked.

Both UK and EU trade mark systems operate on a “use it or lose it” basis. Broadly speaking, a registered trade mark becomes vulnerable to revocation if it has not been put to genuine use for an uninterrupted period of five years. The rationale is straightforward. Trade mark registers should not become cluttered with unused rights that prevent businesses from entering the market or adopting legitimate brands. A trade mark is intended to identify commercial origin in the marketplace, not simply to sit gathering dust on a register.

For businesses, this means that maintaining evidence of use is almost as important as obtaining registration itself. If you wish to enforce a trade mark which is more than five years old, the first question we will ask is: can you prove you have used it? On the other side, if a client receives a trade mark infringement claim we will look for evidence of use to decide if a non-use challenge will be available as a counterattack.

The growing importance of evidence

Many trade mark owners only discover the importance of evidence when a dispute arises. A challenge may come in the form of a non-use revocation action, an opposition against a new application, or infringement proceedings in which the validity of the claimant's registration is questioned.

Recent cases continue to demonstrate that trade mark owners succeed or fail based not merely on whether use occurred, but whether they can prove it. A useful illustration of this can be seen in the UK IPO decision Unifood Import A/S v Unisnacks Europe Limited (O/0799/25),  the opponent's evidence was criticised because it failed adequately to demonstrate genuine UK use of the mark on the relevant goods during the required period. The decision serves as a reminder that poorly organised evidence can undermine otherwise valuable registrations.

The courts and registries are not interested in token or artificial use. They want evidence of genuine commercial exploitation of the mark in the relevant market. Accordingly, businesses should adopt systems for collecting and preserving evidence on an ongoing basis rather than attempting to reconstruct it years later when litigation looms.

Brexit and the EU clone trade mark problem

When the UK left the EU, every registered EU Trade Mark (“EUTM”) was automatically cloned into an equivalent UK registration, often referred to as a "comparable" or "cloned" UK trade mark. During the transitional period following Brexit, owners could rely in certain circumstances on pre-2021 EU use to support these UK rights.

That transitional protection has now effectively fallen away. From 1 January 2026, use in the EU no longer assists in demonstrating genuine use of a comparable UK registration and use in the UK no longer assists in proving use of the residual EUTM. The rights have become entirely separate.

The consequence is significant. A business may have extensive sales across France, Germany and Spain, but if its cloned UK mark has not been genuinely used in the United Kingdom, it may now be vulnerable to revocation. Equally, a business trading only in the UK can no longer rely on that activity to maintain its EUTM.

Businesses with both UK and EU registrations should therefore ensure that they are collecting evidence separately for each territory.

What does good evidence look like?

The strongest evidence is usually the evidence consumers encounter directly. Records showing the trade mark on the goods themselves are best. Examples in the clothing sector include sewn-in neck labels; care labels; woven or printed labels; hang tags; swing tags; and product packaging and branded boxes or bags.

These are often the most persuasive exhibits because they demonstrate the mark functioning as a badge of origin in precisely the way consumers expect.

The next category is evidence showing products being offered for sale. This may include retail display photographs; catalogues and lookbooks; e-commerce product pages; online listings showing ordering functionality. Where possible, screenshots should clearly display the URL and date.

Sales documentation is equally important because it demonstrates genuine commercial activity rather than mere promotional use. Businesses should retain samples of invoices; purchase orders; delivery notes; shipping records; wholesale agreements; and sales summaries. These documents help establish that the products were actually sold in the relevant territory.

Marketing evidence also has value. Advertising campaigns, social media posts, press coverage and influencer collaborations can help demonstrate public-facing use and market presence. However, for goods, advertising alone is rarely sufficient. It should support, rather than replace, evidence showing the mark on products and evidence of sales.

Building a practical evidence system

The best approach is to create a centralised "trade mark evidence bank".

Many businesses already possess the necessary materials but fail to retain them systematically. A simple annual or quarterly process can significantly improve preparedness.

For each key trade mark, businesses should maintain a folder containing:

• Product photographs showing labels, tags and packaging
• Website screenshots showing products available for purchase
• Samples of invoices and sales records
• Marketing materials
• Sales summaries identifying volumes and territories
• Records of significant publicity or endorsements

The evidence should be organised by year and territory. For example, separate folders might be maintained for "UK Use" and "EU Use". This distinction has become particularly important for post-Brexit portfolio management.

Businesses should also ensure that records are dated. Undated materials may carry little evidential weight. Whenever possible, retain original electronic files containing metadata, timestamps and website records.

A small administrative task with significant consequences

Trade mark disputes are often won or lost on evidence rather than legal theory. An infringement claim that appears strong on paper may founder if its owner cannot demonstrate genuine use of the trade mark in question. Conversely, a well-maintained evidential record can preserve valuable rights and strengthen enforcement activity.

For businesses that invest heavily in brands, retaining evidence should be viewed as an integral part of portfolio management rather than an afterthought. Particularly in the post-Brexit environment, Andrew McDonald and I produced an article on this topic where UK and EU rights increasingly stand or fall independently, a disciplined approach to evidencing use may be the difference between maintaining protection and losing it altogether.

If you would like advice on how to keep evidence for your trade mark use and best practice to protect your registered trade mark, do not hesitate to get in touch with our specialists. 

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