Common Law Trademark Explained for UK Businesses

If you’re running a business and using a name, logo, or slogan without registering it, you might already be relying on something called a common law trademark — even if you’ve never heard the term before.

Many founders assume that simply using a brand name gives them full protection. The reality is more nuanced. While common law trademark rights do exist in the UK, they are limited, fragile, and often misunderstood.

This guide explains what a common law trademark is, how it works in the UK, and — crucially — when relying on it could put your business at risk.

What Is a Common Law Trademark?

A common law trademark refers to brand rights that arise automatically through use, rather than through formal registration.

In the UK, this means:

• You start using a business name, logo, or sign

• Customers begin to associate that name with your business

• You may gain limited legal rights based on reputation and goodwill

There is no application, no certificate, and no register entry for a common law trademark.

Your rights exist only because of:

• How long you’ve used the mark

• Where you’ve used it

• Whether the public recognises it as yours

These rights are enforced under the legal concept of passing off, not trademark law itself.

How Common Law Trademark Rights Work in the UK

Unlike registered trademarks filed with the UK Intellectual Property Office, common law trademark rights are:

• Unregistered

• Territory-based

• Evidence-heavy

To enforce a common law trademark in the UK, you must prove three things:

1. Goodwill

Your brand has an established reputation with customers.

2. Misrepresentation

Another business is using a similar name or brand in a way that confuses customers.

3. Damage

Your business has suffered (or is likely to suffer) harm as a result.

This is a high bar — especially for startups and small businesses.

Why Common Law Trademarks Matter for Businesses

Many businesses rely on common law trademark rights without realising it, particularly when:

• They’ve been trading for years without registering

• They operate locally or regionally

• They assume domain ownership equals brand ownership

• They believe company registration protects the name

Understanding common law trademarks matters because assumptions can be costly.

If another business registers the same or a similar name, your unregistered rights may not be enough to stop them.

Benefits of a Common Law Trademark

To be fair, common law trademark rights do offer some advantages:

Automatic Protection

No fees or applications — rights arise through use.

Useful as a Starting Point

They can offer some leverage in early-stage disputes.

Local Protection

If your business is well-known in a specific area, you may have limited regional rights.

However, these benefits come with serious trade-offs.

Risks and Limitations of Common Law Trademarks

This is where most businesses get caught out.

Difficult and Expensive to Enforce

Passing off claims require substantial evidence and legal costs.

No Nationwide Protection

Your rights may only apply where you can prove reputation.

No Presumption of Ownership

You don’t automatically “own” the brand in the eyes of the law.

Vulnerable to Registration by Others

Someone else can legally register your business name as a trademark.

Hard to Sell or License

Unregistered rights are weak assets for investors or buyers.

For growing businesses, these risks often outweigh the benefits.

Practical Examples of Common Law Trademark Issues

Example 1: The Local Café

A café has traded under the same name for 10 years in one town. Another café opens in a different city using the same name and registers it as a trademark. Result: the original café may only retain local rights — if any.

Example 2: The Online Startup

An online brand launches without registering. A competitor later registers a similar name and sends a cease-and-desist. Result: the original business may be forced to rebrand.

Example 3: The Rebrand Gone Wrong

A business rebrands assuming an unused name is “safe” because no one has registered it. Result: an older business claims common law trademark rights and blocks expansion.

Frequently Asked Questions (FAQs)

Is a common law trademark legally recognised in the UK?

Yes, but only through passing off claims, not trademark registration.

Do I own a brand name just by using it?

No. Use alone does not guarantee ownership or protection.

Can someone register my business name as a trademark?

Yes — even if you’ve been using it — unless you already have strong registered rights.

Is a common law trademark enough for online businesses?

Usually not. Online reach often exceeds the limits of unregistered rights.

Should startups rely on common law trademarks?

Only temporarily and with caution. Early registration is often cheaper than disputes.

Conclusion: Is a Common Law Trademark Enough?

A common law trademark can offer some protection — but it is not a reliable foundation for a serious business.

If your brand matters, if you plan to grow, or if you want real control over your name, relying on unregistered rights alone is risky.

The good news? Many businesses can secure proper protection earlier and more affordably than they expect.

If you’re unsure whether your brand is protected — or exposed — a professional trademark search is often the smartest first step.