Why register a trade mark
The registration of a trade mark is a voluntary practice but it is always advisable to do so.
A registered trade mark entitles the proprietor the exclusive right to use that mark in connection with the goods and services for which it is registered. Trade mark protection lasts 10 but is renewable indefinitely; this protection is greater than any other form of intellectual property.
Once a trade mark is registered it can be licensed or assigned to anyone other than the proprietor. The most important aspect of having a registered trade mark is that the proprietor of the mark can sue others who are using an identical or similar mark, where their use causes or is likely to cause confusion.
Other benefits include the fact that a registered trade mark is a valuable commercial asset which is commercially exploitable. A registered trade mark is superior to an unregistered mark and therefore acts as a deterrent to potential infringers.
The problems with not registering a trade mark
Where a brand name is unregistered the owner can only seek to enforce his rights through the common law tort of Passing Off. Passing Off actions are time consuming and expensive. For an action to succeed the owner must show that their mark has good will and a reputation and also produce evidence that the infringers use of the mark has caused a misrepresentation which is causing or likely to cause damage.
A new brand which does not have a registered trade mark will therefore would find it almost impossible to prove that the brand has attracted goodwill and has a reputation.
In conclusion, although you are not required to register a trade mark, it is a very good idea and the cost of registering is insignificant compared to the costs of an action for Passing Off.