Trade marks · 8 min read · 29 September 2026

Non use revocation: how a UK trade mark is lost after five years, and how it is defended

A registration is not a permanent asset. Once five years have passed since the registration procedure completed, anyone can apply to revoke it for the goods and services it has not been used on, and the burden of proving use sits with you, not with them.

What section 46 says

Section 46(1) of the Trade Marks Act 1994 lists four grounds of revocation. Two of them are about use. Under section 46(1)(a) a registration may be revoked if, within the period of five years following the date of completion of the registration procedure, the mark has not been put to genuine use in the United Kingdom, by the proprietor or with the proprietor's consent, in relation to the goods or services for which it is registered, and there are no proper reasons for non use. Under section 46(1)(b) the same applies where use has been suspended for an uninterrupted period of five years.

Three features of that wording decide most cases. The use must be genuine, which excludes token use made only to keep the registration alive. The use must be in the United Kingdom, and since Brexit an EU trade mark's use in Germany or France does not count towards a UK registration except for the part of the five year period that fell before 31 December 2020, under Schedule 2A paragraph 8. And the use must be in relation to the goods or services as registered. Section 46(5) provides that where grounds exist for only some of the goods or services, revocation relates to those only, so a wide specification is pruned back to what has actually been sold under the mark.

Who can attack, and why they do

Section 46(4) allows an application for revocation to be made by any person. No interest in the mark needs to be shown. In practice the applicant is almost always someone you have just cited against, or someone whose own application your registration blocks. The sequence is familiar: you oppose their application or send a letter of claim, and within weeks a Form TM26(N) arrives at the UKIPO seeking revocation of your mark. It is a counterattack, and it works because many proprietors registered more widely than they ever traded.

Section 11A adds a second route. In infringement proceedings where your registration is more than five years old, the defendant can require you to prove use for the goods and services relied on, and you can only enforce the mark to the extent the registration would survive a revocation application. So a registration that has not been used cannot be enforced, whether or not anyone formally applies to revoke it.

The burden of proof is on you

Section 100 of the Act is short and decisive: if in any civil proceedings a question arises as to the use to which a registered trade mark has been put, it is for the proprietor to show what use has been made of it. The applicant for revocation does not need to prove a negative. They file the form, make a statement that the mark has not been used, and the registration falls unless you prove otherwise. A defence built on saying the applicant has no evidence is not a defence.

The two month deadline

Rule 38 of the Trade Marks Rules 2008 governs the procedure. The registrar sends the proprietor a copy of the TM26(N). Under rule 38(3) the proprietor has two months from the date on which that copy was sent to file a Form TM8(N) with a counterstatement. Rule 38(6) states the consequence of missing it: the registration shall, unless the registrar directs otherwise, be revoked. The direction otherwise is rare. A late defence needs a reason the registrar accepts, and pressure of business is not one.

The TM8(N) carries no official fee. What it must contain is the counterstatement, and it should be accompanied by the evidence of use or the evidence supporting proper reasons for non use. Rule 38(4) gives a further period of not less than two months for evidence if none was filed with the form, but rule 38(7) allows the registrar to treat the proprietor as not opposing the application where evidence is not filed within the specified periods, with revocation following. Filing a bare form and hoping to assemble evidence later is a plan that runs out of road quickly.

What evidence of genuine use looks like

The evidence is a witness statement with exhibits, and the exhibits carry the weight. The hearing officer needs to see the mark, on or in relation to the goods or services, in the United Kingdom, within the five year period, and at a scale consistent with a real commercial purpose. Dated invoices to UK customers showing the mark and the goods; UK sales figures broken down by year and by product; dated screenshots of UK facing web pages with prices in sterling and UK delivery; UK advertising with dates and reach; packaging and photographs with something that fixes the date. Undated material, catalogue pages with no evidence of circulation, and turnover figures that are not tied to the mark or the goods are the three most common reasons evidence fails.

Section 46(2) helps a proprietor whose mark has evolved. Use in a variant form that differs in elements which do not alter the distinctive character of the registered mark counts as use of the registered mark, and use in the United Kingdom includes affixing the mark to goods or packaging here solely for export. A refreshed logo usually survives that test; a change to the word itself usually does not.

Starting use after the five years

Section 46(3) provides that a registration is not revoked under (1)(a) or (b) if genuine use is commenced or resumed after the five year period has expired but before the application for revocation is made. The proviso removes most of the comfort: commencement or resumption within the three months before the application is disregarded unless preparations began before the proprietor became aware that the application might be made. A burst of sales after the letter of claim arrives, or after your opposition is filed, will be treated as exactly what it is. If a mark has been dormant, the time to restart genuine use is before the dispute, not during it.

Proper reasons for non use

The alternative defence is that there were proper reasons for non use. The bar is high. The reasons must be obstacles that arose independently of the proprietor's will and made use impossible or unreasonable, not ordinary commercial choices. A regulatory approval that has not yet been granted for a pharmaceutical product is the classic example. Insufficient funds, a change of strategy, a pandemic that reduced demand but did not prevent trading, and a licensing negotiation that took longer than hoped have all failed.

The date revocation takes effect

Under section 46(6) the rights of the proprietor are deemed to have ceased from the date of the application for revocation, or from an earlier date if the registrar or court is satisfied that the grounds existed then. Applicants routinely plead an earlier date, typically the day after the fifth anniversary of registration, because backdating the revocation clears the way for their own earlier filed application and can defeat infringement claims for the intervening period.

Using the attack rather than suffering it

The same tool is available to you. If an earlier registration is being cited against your application, or its owner is threatening you with it, check the registration date first. If more than five years have passed and you cannot find the mark in genuine use in the United Kingdom for the goods that matter, a TM26(N) costing £250 in official fees will either clear the obstacle or force the owner to prove use and narrow the specification to what they actually sell. Filed early, it changes the negotiation before the other side has settled into a position.

Three mistakes that lose registrations

The first is treating the copy of the TM26(N) as correspondence rather than as the start of a two month clock, and finding on day sixty two that rule 38(6) has already done its work. The second is filing a counterstatement that argues about the applicant's motives instead of proving use; motive is irrelevant under section 46(4). The third is evidence assembled from memory and marketing files with no dates, which fails the one question the hearing officer is actually asking.

What we do first

We diarise the rule 38(3) date from the registrar's letter, not from the date you received it. We map the specification against what has actually been sold in the United Kingdom in the five year window, class by class, so the counterstatement defends what can be proved and concedes what cannot, which protects the core and keeps costs proportionate. We then build the witness statement around dated exhibits and file the TM8(N) with the evidence in one go. Where you are the attacker, we run the use investigation before the form is filed, so that the pleaded earlier date is one the evidence supports.