Trade marks · 7 min read · 21 September 2026

Someone is using my trade mark. What can I actually do?

You can do more than most people expect, and less than the internet suggests. A registered UK trade mark is a property right that the court enforces with injunctions, delivery up and damages, and in the clearest cases you do not have to prove anyone was confused. The first step is almost always a letter, and most disputes end there. But the Trade Marks Act contains a trap for the eager: threaten the wrong person, or threaten in the wrong terms, and the person you wrote to can sue you for the threat. This is what the law actually gives you, in the order you use it.

First, what you have

Everything turns on registration. If your mark is on the UK register, section 10 of the Trade Marks Act 1994 sets out what infringes it. If it is not registered, your claim is in passing off, which requires proof of goodwill, misrepresentation and damage and is slower and more expensive to run. An application that has not yet registered gives no right to sue until it does, though once registered the rights are backdated to the filing date. So the first check is the register, and the second is whether your registration covers the goods or services the other party is actually selling.

What counts as infringement

Section 10(1): an identical sign used in the course of trade for identical goods or services. No confusion needs to be shown. Section 10(2): an identical or similar sign for identical or similar goods or services, where there exists a likelihood of confusion on the part of the public, including a likelihood of association. Section 10(3): a sign identical or similar to a mark with a reputation in the United Kingdom, where the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark, whether or not the goods are similar. The infringing use must be in the course of trade, and for section 10(2) the comparison is made through the eyes of the average consumer of the goods concerned, taking the marks and the goods as a whole.

The section 11 defences matter before any letter goes out. Use by an individual of their own name, in accordance with honest practices, is protected; since 2019 that defence no longer extends to companies trading under their corporate name. Descriptive use of a term to indicate the kind, quality or geographical origin of goods is protected. Use of an earlier right in a particular locality is protected. And if the other side has their own earlier registration, your claim may run into a counterclaim for invalidity.

The letter, and the unjustified threats trap

Section 21 of the 1994 Act, as substituted by the Intellectual Property (Unjustified Threats) Act 2017, provides that a communication contains a threat of infringement proceedings if a reasonable person in the recipient's position would understand that a registered trade mark exists and that someone intends to bring infringement proceedings for an act done in the United Kingdom. Under section 21A(1) such a threat is actionable by any person aggrieved by it, and under section 21C the remedies are a declaration that the threat is unjustified, an injunction and damages.

Two things take a letter outside the trap. The first is who it is sent to. Section 21A(2) provides that a threat is not actionable if the infringement alleged consists of applying the sign to goods or packaging, importing goods bearing the sign for disposal, or supplying services under the sign. In plain terms, you may threaten the manufacturer, the importer and the service provider, the primary infringers, freely. It is threats to retailers, distributors and customers, secondary parties, that are actionable, because Parliament did not want brand owners scaring a trader's customers away instead of suing the trader.

The second is what the letter says. Section 21B creates the permitted communication: a letter to a secondary party is not an actionable threat if it is made for a permitted purpose, contains only information necessary for that purpose which the sender reasonably believes is true, and does not contain an express threat. The permitted purposes are giving notice that a registered mark exists, discovering whether or by whom the mark has been infringed by a primary act, and giving notice of a right where the recipient's awareness is relevant to proceedings. A letter to a retailer saying "we own mark X, we believe the goods you stock infringe it, please tell us who supplied them" is permitted. A letter saying "stop selling them or we will sue you" is not.

The defence in section 21C(2) is that the act threatened was in fact an infringement. So a justified threat is never actionable. But that defence is only as good as your assessment of infringement, which is why the letter is drafted after the register and the section 11 defences have been checked, not before.

What the letter asks for

A properly drafted cease and desist letter identifies the registration by number, the goods and services it covers, the infringing use with evidence, the section relied on, and the undertakings sought: to stop the use by a date, to withdraw or destroy stock and materials, to disclose the source and the sales, and to pay costs and a sum for damages or an account of profits. It sets a deadline and states what follows if it passes. It is written on the footing that it may be read by a judge on a costs application, so it is measured, evidenced and accurate. Most infringers, faced with a registration number and a solicitor's letter, sign undertakings.

Alongside the letter: platforms and the register

Where the use is online, the marketplace or platform usually has a rights owner programme that will remove listings on production of the registration and a short notice. That is faster than any court and does not depend on the infringer's cooperation. Where the other side has filed their own application, you oppose it at the UKIPO within two months of publication on Form TM7. Where they have already registered, you apply to invalidate under section 47 on the basis of your earlier mark. These run in parallel with the letter and are often what produces the settlement.

If the letter is ignored: remedies

Section 14 provides that infringement is actionable by the proprietor and that all such relief by way of damages, injunctions, accounts or otherwise is available as for any other property right. Section 15 allows an order for erasure or removal of the offending sign, or destruction where that is not practicable. Section 16 allows an order for delivery up of infringing goods, material and articles. Section 19 provides for their disposal. Claims of modest value go to the Intellectual Property Enterprise Court, where costs recovery is capped, which keeps proceedings proportionate for a small brand.

What not to do

Do not post about the infringer publicly before the letter has been sent; a public accusation to a trader's customers is a threat to a section of the public under section 21(2) and is the classic actionable threat. Do not write to the infringer's retailers or clients with anything beyond a permitted communication. Do not demand sums you cannot justify; a letter is not a negotiating bluff when a court may later read it. And do not wait. Delay does not bar the claim, but it weakens the case for an interim injunction and gives the other side time to build the reputation you then have to dislodge.

What we do

We check the register, the goods and the defences, assess whether the use infringes under section 10 and which subsection, identify the primary infringer and any secondary parties, and draft the letter so that it is either a justified threat to the primary infringer or a permitted communication to anyone else. From £595, agreed in writing before any work begins. Where a marketplace takedown runs alongside, that is from £395. If undertakings are offered we draft the settlement so that it binds. If they are not, we advise on proceedings and the likely cost against the value of the mark.