A registered mark can be revoked for five years of non-use, on application by anyone who wants it. When that happens the burden is not on them to show you were idle. It is on you to show you were not, and section 100 of the Trade Marks Act 1994 says so in a section of its own.
What defeats proprietors is rarely that the use did not happen. It is that the evidence of it cannot be dated inside the period the application puts in issue.
| Requirement | What it means | What a dated record does |
|---|---|---|
| Inside the relevant period | Dated within the five years the application puts in issue | A dated record fixes this, and it is the usual failure point |
| Genuine, not token | Real commercial exploitation, publicly and externally | Nothing. This is a question about the business |
| For the registered goods or services | Matching the specification, class by class | Nothing. The content of the evidence has to show it |
| In the right territory | The UK for a UK mark, the Union for an EU trade mark | Nothing. Established by the evidence itself |
Three of the four rows say nothing, and that is the honest position. A record cannot make token use genuine or make a mark used in one class count in another. It answers the first row, which is where these cases are usually lost.
The standard comes from Ansul (C-40/01), decided by the Court of Justice in 2003 and applied ever since. Genuine use denotes use that is not merely token, serving solely to preserve the rights conferred by the mark, and it must be consistent with the essential function of a trade mark, which is to guarantee to the consumer the origin of the goods or services.
Two consequences follow that catch people out. The use has to be on the market for the goods or services concerned rather than internal to the business, so preparing materials is not the same as using the mark. And the assessment weighs whether the commercial exploitation is real, whether use on that scale is warranted in the sector to maintain or create a market share, and how often it happened. A single invoice is rarely enough.
Nothing about that is an evidential problem a record solves. It is a question about the business, and a page selling records should say so rather than blur the two.
On dates. A revocation application fixes a five-year window, and evidence falling outside it does nothing at all. UK decisions turn on this over and over: material produced in good faith, plainly showing the mark in use, dated a few months outside the period and therefore worthless for the purpose.
Volume compounds it. Where little evidence is filed, what there is gets scrutinised more closely, and where a tribunal would expect material of a particular kind to exist and sees little or none, it is entitled to reject what it has been given as insufficient. A thin file is not neutral. It reads as an absence of use.
Websites are the worst of it. A site is continuously overwritten, so the version that carried the mark three years ago no longer exists anywhere you control. A screenshot taken now proves nothing about then, and a screenshot taken then proves only what a file on your own machine asserts. The fallback is an archive service that may or may not have crawled the right page on a useful date.
The material is deposited as it is produced rather than assembled under pressure years later. Each file is hashed with SHA-256, the hash is timestamped under RFC 3161 by an accredited trust service provider, and the timestamped hash is anchored to the Bitcoin blockchain. Packaging artwork, a campaign, the site as it stands this quarter, a price list, a run of invoices. Each deposit carries its own certificate, so a sequence of them covers whatever window later turns out to matter.
With eIDAS qualification the timestamp carries the presumption under Article 41(2) that the date and time are accurate and the data intact, which shifts the burden to whoever disputes it. A blockchain anchor on its own does not carry that presumption, a distinction set out in blockchain timestamps compared with qualified timestamps.
Every certificate can be checked without us, using SHA-256, OpenSSL, the European Commission's trusted lists and any OpenTimestamps client, which matters when the party reading it is trying to take your mark. Our timestamp validator is open source and checks any provider's timestamp, not only ours, and independent verification sets out each check in full.
A brand is rarely only a mark. Where the same work carries design rights or sits alongside material kept back as a trade secret, the same deposits serve more than one purpose.
Record your first deposit →Yes, and it happens on application by anyone who wants the mark free. In the UK, section 46(1) of the Trade Marks Act 1994 allows revocation where a mark has not been put to genuine use in the United Kingdom within five years of the registration procedure completing, or where use has been suspended for an uninterrupted five years, and there are no proper reasons for non-use. Article 58(1)(a) of Regulation (EU) 2017/1001 does the same for an EU trade mark across a continuous five-year period. Registration is not permanent by itself. It is permanent if used, and provable.
The proprietor, and in UK law that is set out in a section of its own. Section 100 of the Trade Marks Act 1994 is headed Burden of proving use of trade mark and provides that where a question arises as to the use to which a registered mark has been put, it is for the proprietor to show what use has been made of it. The position is the same in EU revocation proceedings. The party attacking the mark does not have to prove a negative. They apply, and you produce the evidence.
Real commercial use, not use manufactured to keep the registration alive. In Ansul (C-40/01) the Court of Justice held that genuine use denotes use that is not merely token, serving solely to preserve the rights conferred by the mark, and that it must be consistent with the essential function of guaranteeing the origin of the goods or services. The use must be on the market for the goods or services concerned rather than internal to the business, and the assessment looks at whether the commercial exploitation is real, whether the use is warranted in that economic sector to maintain or create a market share, and the scale and frequency of it.
Most often on dates. Evidence has to fall inside the relevant five-year period, and material dated outside it does nothing however good it is. UK tribunal decisions turn on this repeatedly, with registrations lost because the only dated material produced sat outside the window. Volume matters too: where little evidence is filed the quality of it is scrutinised more closely, and where a tribunal would expect material of a particular kind to exist and little or none is provided, it is entitled to reject the evidence as insufficient.
Whatever shows the mark being used publicly, for the goods or services registered, in the territory that matters. In practice that means packaging and labels, advertising and marketing material, the website as it appeared, invoices and sales records, trade show material, price lists and catalogues. The common failing is not that these do not exist but that nobody can establish when they existed in the form produced, particularly for anything that lives on a website and has since been redesigned.
This is where proof of use most often breaks down, because a website is continuously overwritten and yesterday’s version is simply gone. A screenshot taken today proves nothing about the past, and a screenshot taken three years ago proves only what a file on your own machine says. Capturing the page as it stands and recording it against an independent timestamp, at intervals, produces material that sits inside whatever window later turns out to matter. The alternative is an archive service that may or may not have crawled your site on a useful date.
No, and this is the distinction worth being careful about. A timestamp establishes that a particular file existed in a particular form on a particular date and has not changed since. It says nothing about whether the mark was used in the course of trade, whether the use was genuine rather than token, or whether it related to the goods and services on the register. Those are questions about commercial reality, answered by the content of the evidence and the wider facts. What a dated record removes is the argument about when, which is the argument that most often decides these cases.
At several points, and rarely with much notice. In a revocation action brought by a third party, often one who wants the mark for themselves. In opposition proceedings, where under section 6A of the Trade Marks Act 1994 an applicant can require an opponent relying on a mark registered more than five years to prove genuine use. In infringement proceedings, where the defendant challenges the mark. And in the United States the system works differently again, requiring the owner to file evidence of use with the office periodically, which is a matter for US counsel rather than for this page.
The registration can be cut back rather than cancelled. Section 46(5) of the Trade Marks Act 1994 provides that where grounds for revocation exist for only some of the goods or services, revocation relates to those only, and Article 58(2) of Regulation (EU) 2017/1001 is to the same effect. This is why evidence needs to map to the specification rather than to the brand in general. A mark registered across several classes and used in one may survive in that one and be lost everywhere else.
In the EU a qualified electronic timestamp carries a presumption under Article 41(2) of Regulation 910/2014 that the date and time are accurate and the data intact. The presumption is rebuttable, shifting the burden to the party disputing it. It applies across all EU member states, and the EEA states recognise qualified timestamps through the EEA Agreement. The UK retains an equivalent framework including the presumption, and recognition between the two regimes now runs one way: UK law continues to recognise EU qualified trust service providers, while the EU no longer recognises UK-registered ones. Whether a tribunal accepts any particular piece of evidence remains a matter for the tribunal.
This page gives general information about trade mark use requirements and evidence. It is not legal advice, and it does not address the separate filing requirements of the United States or other jurisdictions. For a specific matter, consult a qualified trade mark attorney.