Unlike domain names, where many people over the years have made a living from buying attractive domain names and then reselling them at a premium when somebody wants them, trademarks have quite specific rules in place behind them to avoid what we refer to in the industry as trademark squatting.

So, when you begin a business or start a new brand, if it’s a strong name and you have a strong logo and a strong tagline, and it’s unique enough to protect, then you are absolutely doing the right thing by registering the unique aspects of that brand or business as trademarks. In the same way, if you have a unique engineering process or method, you are absolutely right to register a patent.

All intellectual property law is built around certain fundamentals, and one of those fundamentals is that your protection starts at the point you submit an application. This is only fair because otherwise somebody could see your fantastic idea and jump in to try and register the same thing. Naturally, there has to be a first come, first served approach.

But what happens when somebody registers a trademark and does nothing with it? What then?

This is actually more common than you might think, not necessarily because people purchased a trademark with the intention of selling it, but more often than not because somebody had an idea and wasn’t able to get that idea off the ground.

Fast forward a few years and somebody else has the same idea or wants to do something similar. At what point does that trademark become invalid?

This is where it becomes interesting because, even though all countries have slightly different rules and quirks, one thing that is generally accepted across the board is that if you are not able to prove you are using a trademark after five years, and you are challenged by somebody who is using those trademark rights, then the likelihood is that, if challenged, the intellectual property office will side with the party who can evidence that they have established the most genuine goodwill.

This is where first to register does not necessarily mean the highest level of protection.

When you actually look at it, that’s very, very fair. People should not be allowed to squat on something and prevent other people from doing something with it.

Some organisations actually allow their trademark to expire after ten years in the UK in order to reapply for it, therefore starting that five year cycle again and giving themselves an additional five years without having to provide proof of use.

In the US, unlike the UK, trademark owners are effectively forced to prove that they are using their trademark. Evidence of use must be filed between the fifth and sixth year after registration, and again at various stages throughout the life of the trademark. If you cannot prove that you are genuinely using the trademark in commerce, you risk losing your registration.

The US system is built around the principle that trademarks should be used, not simply registered and stored away. What they insist on, above all else, is proof of use.

Proof of use is actually harder than you might think unless you plan for it.

What people are going to be looking at in terms of evidence is proof that you had marketing out, that you had products for sale, that you had a website live, and that you transacted with clients using that trademark. The more concrete that proof is, the better.

One way that people are protecting themselves for the future is by making evidence of their trading absolutely irrefutable through the use of blockchain technology.

If you’re not familiar with blockchain, it is the technology behind cryptocurrency. Without going into the technical details, it is a technology that many regulators, governments and financial services institutions are moving towards because the way the data is stored makes it extremely difficult to tamper with.

Decentralisation is what it’s referred to as.

Decentralisation doesn’t have to be as complicated as storing currency. It can be as simple as taking a snapshot of your first ever sales transaction using a trademark and committing that snapshot to the blockchain so that it cannot later be contested. In other words, nobody can say it’s fake or that it’s been tampered with, unlike an email which potentially could be.

It’s also worth noting that people have registered trademarks with the intention of selling them back maliciously.

The process is often referred to as trademark trolling.

It happens when people recognise a business that is not protected, purchase their trademark, register it in their own name and then attempt to sell it back at a premium, effectively holding the trademark owner to ransom.

People who do this are often smart enough to set their asking price at a level where it is more cost effective and time effective to pay them than it is to fight for your rights through the courts.

Bear in mind that, without a trademark registration, you may have very limited trademark rights. You could apply for a trademark and then contest the registration through the IPO, but you are still potentially looking at a lengthy process. You could also be liable for costs if you lose, particularly if the other side can evidence genuine trade.

This is why it’s so important to have your trademark affairs in order.

For those of you that do, if you want to go the extra mile, securing evidence of proof of use via blockchain, particularly if you’re a new business entering the market, is a lot less expensive than you might think.

If you’d like to learn more about that, by all means make an enquiry and we’d be happy to share some more information with you.

Remember, failing to prepare is preparing to fail.

Ultimately, the rules are in place to protect people who have genuine intellectual property to protect.

We are always available to offer guidance as and when required.