Honest Concurrent Use: When Similar Trademarks Can Coexist in the UK

You have found another business using a name or logo that looks uncomfortably close to yours. Or perhaps you want to file a trade mark application and realise someone else already has something similar on the register.

Many founders assume the answer is simple: whoever filed first wins, or any similarity automatically blocks registration. Both assumptions can be wrong.

This is where honest concurrent use can matter. In some cases, similar trade marks can coexist in the UK because both businesses have used them honestly over time. The catch is that this is a narrow, fact-heavy area. Businesses often make costly mistakes by investing in branding before clearance checks, treating Companies House registration as if it gives trade mark rights, or assuming years of use automatically guarantee protection.

This guide explains what honest concurrent use means, when it comes up, how the UK Intellectual Property Office may approach it, and what founders should do before they invest in branding, print packaging, register a domain or sign distribution agreements.

Overview

Honest concurrent use is a trade mark concept that may allow similar marks to coexist where separate businesses have genuinely and independently used them in parallel. It does not create an automatic right to register or keep using a mark, but it can be relevant when the usual conflict rules would otherwise block an application or trigger a dispute.

• Whether the marks are actually similar in appearance, sound, meaning, goods or services, and customer impression.
• How long each business has used its mark, where it has used it, and whether that use has been genuine and in good faith.
• Whether there has already been real confusion in the market, not just theoretical overlap.
• What evidence exists, such as dated packaging, invoices, adverts, website screenshots and sales records.
• Whether a coexistence agreement, brand adjustment, limitation of goods or services, or rebrand is the safer commercial option.

What Honest Concurrent Use Means For UK Businesses

Honest concurrent use means two similar trade marks may sometimes be accepted as coexisting because they have both been used fairly and independently over a period of time.

In plain English, the idea recognises that the real world does not always fit clean legal categories. Two businesses can adopt similar branding without bad faith, especially if they started in different regions, sold through different channels, or traded for years without either side knowing about the other.

Under UK trade mark practice, honest concurrent use can be relevant when an application faces objection or opposition because of an earlier similar mark. It is not a loophole that overrides all other rights. Instead, it is one of the factors that may be considered when deciding whether registration should still be allowed, sometimes with limits.

It is not the same as a general right to keep using a name

Founders often confuse several different rights and processes:

• A company name registered at Companies House.
• A trading name used in the market.
• A registered UK trade mark.
• Unregistered rights built through reputation, often called passing off rights.

These are related, but they are not interchangeable. Registering a company name does not mean you can safely use it as a brand or business name. Buying a domain does not mean the name is available as a trade mark. Even long use may not be enough if another business has stronger earlier rights.

Honest concurrent use sits within this wider picture. It may help explain why two businesses have both built up legitimate positions, but it does not erase the need to assess registration risk, infringement risk and commercial confusion.

What makes the use “honest”

The word “honest” matters. The question is not only whether two marks have been used at the same time. The use also needs to be in good faith.

That usually means there was no deliberate attempt to copy, ride on another brand’s reputation, or create confusion. If a business adopted a mark knowing about a competitor and hoping to benefit from the similarity, an honest concurrent use argument is much weaker.

Decision-makers may look at things such as:

• How the name or logo was chosen.
• Whether there were clearance searches before launch.
• When the business first became aware of the other mark.
• Whether branding changed after learning of the conflict.
• Whether the businesses targeted the same customers in the same way.

What makes the use “concurrent”

Concurrent use means both marks have actually been used in trade over a period of time. This is about real commercial use, not simply reserving a company name, setting up social media handles, or filing an application and leaving it unused.

The details matter. A small local café trading under one name in Manchester may be in a very different position from an online retailer selling nationwide under a near-identical mark. Online trading has made regional separation less clear than it once was, so evidence about the scope of sales and marketing is often central.

Why it matters before you invest in branding

This issue usually appears after money has already been spent. A founder has paid for packaging, signage, a website, app design, marketplace listings and customer terms, then receives an objection or a warning letter.

That is why the practical lesson is simple: sort out trade mark risk early. Honest concurrent use can sometimes soften a conflict, but it is not something you want to rely on as your main launch plan.

When This Issue Comes Up

Honest concurrent use most often comes up when a business applies to register a trade mark and an earlier similar mark stands in the way.

There are several founder moments where this becomes real, and each one raises slightly different issues.

When you file a UK trade mark application

The UK Intellectual Property Office examines applications and may raise concerns, especially if the mark conflicts with earlier rights or if another rights holder files an opposition. If that happens, a business may argue that the marks have coexisted honestly in the market for long enough that registration should still be permitted.

This tends to be a detailed evidence exercise. The business may need to show how long it has used the mark, in what territories, for which goods or services, and with what level of actual confusion, if any.

When another business opposes your application

An opposition can be a shock for a startup that thought its brand was original. The other side may have an earlier registration and say your mark is too close. Honest concurrent use can become part of the response if you have independently used your mark over time and built a real trading history.

That does not mean the opposition will fail. If the marks are very close and the goods or services overlap heavily, the case may still be difficult. But where both businesses have coexisted in the market without notable confusion, the argument may carry weight.

When you receive a cease and desist letter

Some businesses discover the problem only after launch. A letter arrives alleging trade mark infringement or passing off, often just before a funding round, retail rollout or website relaunch.

At that stage, honest concurrent use may be relevant to settlement discussions. It can support a position that the business did not act dishonestly and that coexistence may be possible with sensible guardrails. Those guardrails may include:

• Geographic limits.
• Restrictions to certain goods or services.
• Specific logo or presentation rules.
• Agreements about marketplaces, advertising keywords or domain use.
• Commitments to avoid particular customer sectors.

When two businesses have grown separately and then collide online

This is where founders often get caught. One business may have operated regionally for years, while another expanded through e-commerce, social media and online marketplaces. What used to be separate customer bases now overlap.

In that setting, an old peaceful coexistence can become unstable. The fact that confusion was limited in the past does not always mean future coexistence is acceptable if both businesses now sell nationwide or internationally through the same digital channels.

When buying or investing in a business

Honest concurrent use also matters in due diligence. If you are acquiring a business or investing in one, a similar third-party brand can affect value, risk and expansion plans.

Before you sign a share purchase agreement, franchise agreement or distribution contract, you will want to know:

• Whether the target business owns registered trade marks or relies mostly on unregistered use.
• Whether there are any pending oppositions, disputes or warning letters.
• Whether honest concurrent use is being relied on, and if so, what evidence supports it.
• Whether coexistence is stable only in a narrow region or product category.
• Whether a rebrand may be needed as the business scales.

Practical Steps And Common Mistakes

The safest approach is to treat honest concurrent use as a possible fallback argument, not as a substitute for brand clearance and sensible trade mark strategy.

If you are choosing a brand now, the goal is to avoid needing this argument at all. If a conflict already exists, the goal is to preserve evidence, assess risk early and choose the least disruptive commercial path.

1. Clear the brand before you print or launch online

Founders often check Companies House and stop there. That is not enough. A proper clearance exercise should look at registered trade marks, similar brand use in the market, domains, app stores, online sellers and the way your actual goods or services will be described.

Before you register a domain or print packaging, check:

• The exact brand name and close spelling variants.
• Pronunciation similarities.
• Logo elements and stylisation.
• The classes and descriptions of goods or services you will use.
• Whether you plan to sell only locally or across the UK online from day one.

A name that seems different on paper can still cause trouble if it sounds the same or creates a similar customer impression.

2. Keep dated evidence of real use

If honest concurrent use becomes relevant, evidence wins arguments. General statements about “we have used this for years” are not enough.

Useful evidence usually includes:

• Invoices and purchase orders.
• Dated packaging, labels and product photographs.
• Website screenshots with clear dates.
• Advertising records and social media campaign records.
• Sales figures by year, channel and region.
• Trade show materials, catalogues and point of sale displays.
• Customer communications showing how the brand appeared in practice.

Keep this material in an organised file. If a dispute starts, reconstructing years of brand use in a hurry is expensive and messy.

3. Be realistic about confusion

A common mistake is arguing there has been “no confusion” when the business has never actually monitored it. Another mistake is assuming one or two confused emails automatically end the discussion.

The real question is broader. How likely is confusion across the relevant customers, goods or services, channels and geography? Evidence of actual confusion matters, but so does the overall market context.

For example, two specialist B2B suppliers with careful procurement customers may coexist more easily than two direct-to-consumer beauty brands selling nationwide on the same marketplaces.

4. Do not assume long use fixes a weak brand choice

Time helps, but it does not guarantee safety. A mark that was chosen without searches, or adopted after awareness of another brand, may remain vulnerable even after years of trading.

This is especially true if the overlap expands over time. A coexistence story that worked while one business sold only through a local shop may break down once both businesses are selling online to the same UK customers.

5. Consider narrowing your application or brand position

Sometimes the best answer is not all or nothing. If a conflict centres on one product line or one service category, narrowing the goods or services claimed in a trade mark application can make the position more workable.

A business may also reduce risk by adjusting how it presents the brand, such as using a more distinctive house mark, changing packaging emphasis, or avoiding a problematic standalone abbreviation.

That kind of adjustment can be much cheaper than a full rebrand after launch.

6. Use agreements carefully

Where two businesses can live with the overlap, a coexistence agreement may help. This is a contract that records how each party will use its mark and what limits apply.

Terms may cover:

• The exact wording or logo each side may use.
• The goods or services each side will offer under the mark.
• Territories, online channels or customer sectors.
• How disputes, objections and future applications will be handled.
• What happens if one side expands, rebrands or sells the business.

The drafting matters. Loose wording can create new uncertainty, especially when the business later moves into new products, marketplaces or countries.

7. Match your wider legal documents to your brand plan

Trade mark issues do not sit in isolation. If you are scaling a consumer brand, your legal setup should support the actual way you trade.

Depending on the business, that may include:

• Supplier agreements that reflect correct product branding.
• Customer terms for selling online.
• Marketplace terms and reseller controls.
• Privacy notices and a privacy policy if you collect customer data through your website or app.
• Employment contracts and contractor IP clauses, so creative assets and branding work are owned by the business.

If your branding position changes, these documents may need updating too. A rebrand is not just a logo change, it often affects contracts, packaging, compliance wording and customer communications.

Common mistakes founders make

• Treating a company name registration as if it gives trade mark clearance.
• Launching first and searching later.
• Ignoring similar marks because the logo looks different.
• Failing to keep dated proof of use.
• Sending aggressive accusations before understanding the other side’s rights.
• Assuming honest concurrent use means “we can both do what we like”.
• Signing investment, retail or licensing deals before the brand risk is understood.

FAQs

Does honest concurrent use mean I can definitely register my trade mark?

No. It may support an application, but registration is not automatic. The outcome depends on the marks, the goods or services, the trading history, the evidence and the likelihood of confusion.

How long do I need to have used my mark before honest concurrent use can help?

There is no fixed minimum period that guarantees success. Longer and well-documented use usually helps, especially where both businesses have traded in parallel without significant confusion, but each case turns on its facts.

If I registered my company at Companies House first, do I win?

No. Companies House registration does not give the same protection as a registered trade mark. You still need to assess trade mark rights and any unregistered rights another business may have built up.

Can two similar marks coexist if one business only sells online?

Possibly, but online trading often increases overlap because customers can access both businesses across the UK. A mark that coexisted peacefully in separate local areas may become more problematic once sales move online.

Should I rebrand as soon as someone objects?

Not always. Some objections are weak, some conflicts can be managed, and some situations support coexistence or a narrowed application. But do not ignore the issue. Early legal review usually gives you more options and lower costs.

Key Takeaways

• Honest concurrent use can sometimes allow similar trade marks to coexist in the UK, but it is a narrow and evidence-heavy concept.
• The main questions are honesty, real parallel use, the extent of market overlap and the likelihood of customer confusion.
• Registering a company name, buying a domain or using a brand for years does not automatically give safe trade mark rights.
• Founders should clear branding early, before they invest in branding, print packaging, launch online or sign major contracts.
• Dated evidence of use, sensible application strategy and carefully drafted coexistence terms can make a major difference if a dispute arises.
• If your business is expanding, raising investment or selling nationwide, old coexistence assumptions should be reviewed because online overlap changes the risk.

If your business is dealing with honest concurrent use and wants help with trade mark clearance, evidence review, coexistence agreements, and branding risk strategy, you can reach us on 08081347754 or team@sprintlaw.co.uk for a free, no-obligations chat.

Official Sources to Check

Rules and regulator guidance can change. Check the current official material most relevant to this issue before relying on the article:

• GOV.UK: register a trade mark