Too little, too late? Comparable UK trade marks facing non-use challenges in 2026

From 1 January 2026, owners of comparable United Kingdom (UK) trade marks which came into existence following Brexit will not be able to rely on use of the mark in the European Union (EU) in proceedings before the UK Intellectual Property Office (IPO). 

For UK trade marks, an uninterrupted period of five years' non-use can render a registration vulnerable to challenge under section 46(1) of the Trade Marks Act 1994 (TMA). 

Immediately post-Brexit, the UK IPO would consider evidence of use in the EU as "genuine use" in respect of comparable UK trade marks to the extent that any part of the relevant five-year period fell before 1 January 2021. 

However, at the start of next year, proof of use in the EU will no longer be relevant in UK revocation proceedings. 

What will happen to my UK trade mark registration if I cannot prove use? 

The UK IPO is unlikely to take action independently, but any relevant UK trade mark registration is open to challenge by third parties. 

Such challenges usually arise in the context of enforcement of the registration – e.g. reliance in opposition, invalidation or infringement proceedings – but can happen at any time, such as if a person wants to "clear the path" before commencing use or registration of the mark itself.

If an owner cannot demonstrate genuine use of the mark, the UK IPO will revoke the registration. 

Where grounds for revocation exist in respect of only some of the goods or services registered, the UK IPO can order a partial revocation (section 46(5) TMA). 

Revocation may be ordered from the date of the application for revocation or, if the UK IPO is satisfied that the grounds existed earlier, with effect from that earlier date. 

Can I commence use now to maintain my registration? 

Under section 46(3) TMA, evidence showing commencement or resumption of use within the three months before the application for revocation (after the expiry of a five-year non-use period) may be disregarded by the UK IPO. 

Only if the owner can show that preparations for the commencement or resumption began before the owner became aware that the application might be made, will the evidence be considered. 

Arguably, if owners have only recommenced use knowing about the impending threat from 1 January 2026, the UK IPO may be inclined to disregard such evidence if raised in proceedings. 

There is also the practical difficulty that owners may simply not have an established business in the UK and have made no substantial plans for commencing use in the coming months. 

Can't I just file a new trade mark application?

Filing new applications for identical marks and for identical goods and services to those marks under threat will not necessarily resolve the situation. 

Such applications may be considered in "bad faith", on the basis that re-filing amounts to an attempt to distort the market and seek "evergreening" protection for an unused mark. If bad faith is found, the application can be refused registration. 

What should I do to preserve protection? 

It may be possible to preserve some form of protection in the UK by following these tips: 

• Keeping and consolidating records for any preparatory steps taken towards launch in the UK to demonstrate intention and planning should a revocation action arise 
• Checking in with licensees (formal or informal) about any evidence of use in the UK they might have and keeping copies of such evidence 
• Separating out records and evidence for the UK where, historically, the UK has fallen under the "EU" category – consolidated evidence will be looked upon less favourably after 1 January 2026 
• Re-filing in a modified manner – for example, has a logo changed format since filing? 
• Relying on other types of rights – logo formats may still benefit from copyright protection which could still act as an effective deterrent against third party misuse

Will the change have any other impact? 

It is also worth noting that, from 1 January 2026, the UK IPO will not consider use in the EU to establish "reputation" in the UK where relevant in opposition or invalidation proceedings. 

If you need advice about protection for your trade marks in the UK, please contact a member of our Intellectual Property team.