How to Check If Someone Is Infringing Your UK Trademark
You have a registered UK trademark and you suspect someone else is using your mark, or something very close to it. Here is how to assess whether it constitutes infringement and what to do about it.
What counts as trademark infringement
Trademark infringement in the UK is governed by section 10 of the Trade Marks Act 1994 (TMA 1994). There are three distinct types, each with different requirements. Understanding which applies to your situation determines your enforcement strategy.
Section 10(1): identical mark, identical goods or services
This is the most straightforward type. If someone uses a sign that is identical to your registered trademark, in relation to goods or services identical to those for which your mark is registered, that is infringement. No need to prove likelihood of confusion; it is presumed.
“Identical” is interpreted strictly but not pedantically. The CJEU held in LTJ Diffusion v Sadas (the “Arthur” case) that a sign is identical if it reproduces, without modification or addition, all the elements of the registered mark, or if the differences are so insignificant that an average consumer would not notice them.
Section 10(2): similar mark or similar goods, likelihood of confusion
This covers two scenarios: (a) an identical mark used on similar goods/services, or (b) a similar mark used on identical or similar goods/services. In both cases, you must demonstrate a likelihood of confusion on the part of the public, which includes the likelihood of association with your mark.
The assessment considers multiple factors: the degree of visual, aural, and conceptual similarity between the marks; the degree of similarity between the goods or services; the distinctiveness of the earlier mark; and the typical level of attention of the relevant consumer.
Section 10(3): marks with a reputation
If your mark has a reputation in the UK, you get broader protection. Under s.10(3), use of an identical or similar sign is infringement if it takes unfair advantage of, or is detrimental to, the distinctive character or repute of your mark. This applies even when the goods or services are not similar.
This provision protects against dilution (blurring your mark's distinctiveness), tarnishment (damaging your mark's reputation), and free-riding (taking unfair advantage of the goodwill you have built). You need to show that your mark has a reputation among a significant portion of the relevant public.
How to identify potential infringement
Infringement does not always come with a letter announcing itself. You need to be proactive about monitoring. The main channels to watch are:
- Trademark register filings: Check the UK IPO register regularly for new applications that are identical or similar to your mark. Trademark Dashboard makes this straightforward.
- Online marketplaces: Amazon, eBay, Etsy, and other platforms are common sources of infringing products, particularly counterfeit goods. Search for your brand name periodically.
- Domain name registrations: Check for new domain registrations incorporating your trademark. WHOIS lookups and domain monitoring services can alert you.
- Social media:Search for accounts or business pages using your mark. Platforms have their own brand protection programmes (e.g. Amazon Brand Registry, Meta's IP reporting).
- Customer reports: Pay attention when customers mention confusion, report receiving goods from an unfamiliar source, or ask about a business they believe is connected to yours.
- Trade publications and industry events: A competitor launching under a similar name may first appear at an industry trade show or in a sector publication.
Steps to take when you find potential infringement
Do not rush into action. A structured approach protects your position and avoids unnecessary costs.
Step 1: Gather evidence
Before contacting the other party, document everything. Take screenshots (with dates), save web pages using the Wayback Machine, photograph physical products or signage, and keep records of any customer confusion. Evidence that is not preserved promptly may become unavailable.
Step 2: Assess the strength of your position
Before spending money on enforcement, honestly evaluate your case:
- Is your trademark registration in force, properly renewed, and not vulnerable to revocation for non-use (five years without genuine use in the UK)?
- Does the other party's use fall within the scope of your registration (same or similar goods/services, same or similar classes)?
- Is there a genuine likelihood of confusion, or are the marks and goods sufficiently different that consumers would not be misled?
- Does the other party have any defence, such as honest concurrent use, an earlier right, or use of their own name under s.11(2)?
Step 3: Send a cease and desist letter
A cease and desist letter is usually the first formal step. It notifies the other party of your rights, identifies the infringing use, and requests that they stop. A well-drafted letter resolves many disputes without court involvement.
Costs for a solicitor-drafted cease and desist letter typically range from £500 to £2,000. This is money well spent: a letter that cites the correct legal provisions and demonstrates you have a solid case is far more likely to achieve a result than an informal email.
Step 4: Consider mediation
If the cease and desist letter does not resolve the matter, mediation is worth considering before committing to court action. The UK IPO offers a free mediation service for trademark disputes. CEDR and other independent mediation providers also handle IP disputes.
Mediation is non-binding unless both parties agree to a settlement, but it is significantly cheaper than litigation and often achieves a pragmatic resolution (e.g. the infringer agrees to rebrand within a set period, or the parties agree to coexistence in different geographic areas or product categories).
Step 5: Apply to court if necessary
If negotiation and mediation fail, court action may be the only option. In the UK, trademark infringement claims can be brought in:
- The Intellectual Property Enterprise Court (IPEC): A specialist court designed for smaller IP claims. The costs cap is £50,000, and damages are capped at £500,000. Proceedings are streamlined, with limited disclosure and typically a one or two-day trial. Most SME trademark disputes are suitable for the IPEC.
- The High Court (Chancery Division): For larger, more complex disputes with no costs or damages cap. Proceedings are more involved and significantly more expensive.
Realistic cost estimates for court action:
| Enforcement route | Typical cost range | Typical timeline |
|---|---|---|
| Cease and desist letter | £500–£2,000 | 1–4 weeks |
| UK IPO mediation | Free (UK IPO service) | 2–4 months |
| UK IPO invalidity/cancellation | £3,000–£8,000 | 6–18 months |
| IPEC proceedings | £10,000–£50,000 | 9–18 months |
| High Court proceedings | £50,000–£250,000+ | 12–36 months |
UK IPO proceedings: a cheaper alternative to court
The UK IPO can hear two types of proceedings that may be relevant:
- Invalidity proceedings (s.47 TMA 1994):If someone has registered a mark that conflicts with your earlier right, you can apply to have their registration declared invalid. The fee is £200 for the application.
- Revocation proceedings (s.46 TMA 1994):If a conflicting registration has not been genuinely used in the UK for a continuous period of five years, you can apply to have it revoked. The fee is also £200.
UK IPO proceedings are paper-based, handled by hearing officers, and significantly cheaper than court. However, they cannot award damages, grant injunctions against ongoing use, or order the destruction of infringing goods. For those remedies, you need a court.
The importance of keeping records of use
Your ability to enforce your trademark depends partly on being able to demonstrate genuine use. Under s.46 TMA 1994, a registration that has not been genuinely used in the UK for five years is vulnerable to revocation. If the other side challenges your mark during infringement proceedings, you will need evidence of use.
Keep records of: invoices and sales figures, marketing materials and advertising spend, website analytics showing UK visitors, packaging and product photographs, social media posts and engagement data, and any press coverage. Maintain this as an ongoing practice, not something you assemble only when a dispute arises.
When to seek professional help
You can handle straightforward monitoring and initial assessment yourself. But you should involve a trademark attorney or solicitor if:
- You are considering sending a cease and desist letter (to avoid groundless threats liability).
- The infringer has responded by challenging the validity of your mark.
- You are considering UK IPO or court proceedings.
- The infringement involves counterfeit goods (which may warrant criminal proceedings or customs seizure).
CITMA (the Chartered Institute of Trade Mark Attorneys) maintains a directory of registered attorneys. Many offer a free initial assessment.
Frequently Asked Questions
What counts as trademark infringement in the UK?
Trademark infringement under the Trade Marks Act 1994 occurs when someone uses a sign identical or similar to your registered mark, in relation to identical or similar goods/services, without your consent. The three main types are set out in s.10(1) (identical mark, identical goods), s.10(2) (similar mark or goods with likelihood of confusion), and s.10(3) (marks with a reputation, where use takes unfair advantage or causes detriment).
How much does it cost to enforce a trademark in the UK?
A solicitor-drafted cease and desist letter typically costs £500 to £2,000. If the matter proceeds to UK IPO invalidity or cancellation proceedings, expect costs of £3,000 to £8,000. Full court action (Intellectual Property Enterprise Court or High Court) can cost £10,000 to £50,000 or more, depending on complexity. The IPEC has a costs cap of £50,000 for most claims.
Do I need a solicitor to send a cease and desist letter?
Not legally, but it is strongly recommended. A poorly worded letter can amount to a groundless threat of infringement proceedings, which under s.21 of the Trade Marks Act 1994 can expose you to a claim from the other side. A solicitor will ensure the letter is properly drafted and avoids this risk.
What is the difference between infringement and passing off?
Infringement applies when you have a registered trademark. It is a statutory right under the Trade Marks Act 1994 and is generally easier and cheaper to enforce. Passing off is a common law right that protects unregistered marks through goodwill, but requires you to prove three elements: goodwill, misrepresentation, and damage. Passing off claims are typically more expensive and less predictable.
Can I take action through the UK IPO instead of going to court?
Yes. The UK IPO handles invalidity proceedings (to cancel someone else’s conflicting registration) and revocation proceedings (to remove a registration for non-use). These are significantly cheaper than court action, typically £3,000 to £8,000, and follow a paper-based process. However, the UK IPO cannot award damages or grant injunctions; only a court can do that.