What if my trade mark is unregistered?

It is not essential to register your trade mark. If your trade mark is not registered, you can still build up protectable rights (goodwill and reputation) through use of your trade mark. You can assert your common law rights under the Fair Trading Act and the tort of passing off.

​In order to be successful in these actions, you need to prove there is a reputation associated with your mark. If you register your mark, this does not need to be proven if you take action to stop infringement.