Marks which are not used in relation to goods or services (i.e. names, marks or logos used in relation to a business) or marks which otherwise do not qualify for registration may nevertheless be protected by means of a passing-off action.
To succeed in such an action, it is necessary for you to establish that your unregistered mark has comparable goodwill or reputation in connection with the product, service or business with which it is used. You must also demonstrate that customer confusion and damage to your business results from the infringement of your unregistered mark.
It is rarely desirable to choose a mark which may conflict with a pre-existing mark of another as launch plans may be interfered with and a post-launch change of mark will inevitably be expensive and troublesome.
The Trade Marks Registry lists registered marks but it would also be appropriate to check trade sources to see if there are any unregistered marks which could conflict with yours. In addition, it may be appropriate to check with the Companies Registry as to any possibly conflicting registered company names.
The Trade Marks Registry can give advice also on registrability prior to an application for registration through the Search and Advisory Service.