What do genuine use of a trademark and proof of use mean, and why is the systematic collection of use evidence so important? Our lawyer Anne Nyström explains in her blog what brand owners need to know about proof of trademark use and how to ensure that your trademark remains protected.

A trademark is like a company’s fingerprint—it not only distinguishes it from competitors but also builds trust and credibility among customers. It protects the brand, creates market opportunities, and ensures that investments in brand recognition are not wasted.

Although trademark protection can, in principle, be renewed indefinitely, its validity requires that the trademark is genuinely and actively used in business. As the saying goes: "Use it or lose it!"

What is proof of trademark use?

Finnish trademark law requires that a trademark be put into use within five years of registration, or it may be at risk of cancellation due to non-use.

If a trademark registration is more than five years old, it can be revoked in Finland if the actual use of the trademark has been continuously interrupted for five years. If the trademark owner can demonstrate valid reasons for non-use, the trademark may not necessarily be lost despite the lack of use. However, such situations are exceptional and typically involve circumstances beyond the trademark holder's reasonable control, such as war or import and export bans.

To maintain trademark registration, the owner must demonstrate that the trademark has been genuinely used in a commercial context. This requires various forms of evidence, which do not necessarily have to be extensive in quantity but must clearly confirm that the mark has been used for the goods and services for which it is registered. The evidence must also indicate the time period and the geographical area where the mark has been used.

If sufficient evidence cannot be provided, the trademark registration may be partially or completely revoked. A competitor may request the revocation of a trademark due to non-use, for example, if you file an opposition against their trademark or if they cannot register their trademark because yours is a barrier due to similarity.

It is important to note that the need to present proof of use often arises suddenly and urgently. Deadlines for submitting evidence are often short, making it challenging to gather and compile materials from scratch, which can lead to missing critical evidence. Therefore, trademark owners should ensure that trademark use is documented systematically from the beginning, so that evidence is readily available and not lost due to staff changes.

The proof of use must be genuine. Merely symbolic or formal use aimed solely at maintaining trademark protection is insufficient and does not qualify as actual "genuine" trademark use under the law. For example, using the trademark in internal company materials or in isolated, occasional situations is not sufficient. Real use relates to the trademark’s purpose—marketing and ensuring distinctiveness. Symbolic use only serves to maintain registration.

What kind of proof of trademark use is required?

The evidence of genuine use of a trademark varies depending on the type of goods and/or services it covers. Consumer goods, daily products, luxury items, or specialized products for professionals all differ, and proof of use must take into account the circumstances and commercial realities in which the trademark is used. For services, evidence is often of a different nature, as there is no physical product to which the trademark can be affixed.

Generally, all trademark owners should aim to collect and retain documentation such as marketing campaigns, research reports, sales and marketing budgets, cooperation, customer, and distribution agreements, as well as online and social media usage data with key metrics.

Why is proof of trademark use important?

Proof of trademark use is not only a legal requirement but also protects the significant investment made in your company’s brand. First, it safeguards your trademark from being revoked due to non-use. A five-year period of non-use can expose a trademark to cancellation claims from competitors or other parties. If the trademark owner cannot sufficiently prove genuine use, the trademark may be lost, even if it has been used but not properly documented.

Second, proof of use is a key asset in potential legal disputes. For example, filing oppositions against similar or identical trademarks or pursuing infringement litigation may not be advisable if there is a risk of losing your trademark due to the opposing party demanding proof of use.

Systematic documentation of use also enhances the value of your trademark and brand investment, facilitating licensing, resale, and franchising arrangements, securing funding, and playing a crucial role in corporate transactions.

Proof of use may also be beneficial in cases where it is necessary to demonstrate the likelihood of confusion with another mark in the market. Documentation can confirm that the trademark is actively used in business and that consumers associate the trademark with a specific product or service, making it easier to prove confusion.

How to document proof of trademark use?

Proof of use is not based on assumptions or the trademark owner’s statements about the use but on concrete evidence. The following documents serve as examples of relevant and objective proof of use:

• Sales reports, invoices, contracts, and order confirmations: These demonstrate that goods or services have been sold under the trademark. It is important that the trademark appears in these documents to explicitly confirm its use.
  
  
• Marketing materials: Advertisements in newspapers, television, and radio, websites, and social media posts and campaigns where the trademark is clearly visible are strong evidence. Reports on social media ads should include campaign dates and reach statistics, and website analytics should show visitor data and geographic locations.
  
  
• Packaging labels and logos: Product packaging displaying the trademark is classic proof of use. Photos of packaging are valuable evidence.
  
  
• Visibility at trade shows or events: Professional trade fairs and other events where the brand is actively displayed provide strong evidence of trademark use. Photos, videos, and participation records should be preserved.
  
  
• Customer feedback mentioning the trademark (e.g., emails or website reviews), as well as customer surveys and responses where the trademark is used.
  
  
• Applications: If the trademark protects a mobile app, download and usage data are essential to show actual use.
  
  
• Implementation images and videos: For example, photos or videos of delivered services (e.g., training, consulting) or business premises where trademarked products are displayed or sold.
  
  
• Project documentation: Documents related to delivered services, such as user manuals, reports, or analyses.
  
  
• Marketing and participation documents from events (e.g., programs, presentation materials, photos, or videos).
  
  
• Press releases mentioning the trademark and related services.
  
  
• Articles or blog posts featuring the trademark.
  
  
• Mentions in industry publications or media.
  
  
• Certificates from partners or resellers confirming trademark use.
  
  
• Certificates or recognitions awarded to products or services under the trademark.
  
  
• Agreements, materials, and reach reports related to influencer collaborations, content creation, and user-generated content (UGC).
  
  
• Payment transaction documents: Statements and payment platform reports (e.g., PayPal, Stripe) showing sales under the trademark.
  
  
• Email campaigns and newsletters displaying the trademark.
  
  
• Customs documents related to export or import.

A company should maintain a regular archive of these materials to facilitate proof of use when needed. A good practice might be updating the archive monthly or at least twice a year. Given that companies have different needs and trademark portfolios, consulting an expert on best practices for documenting proof of use is advisable.

A responsible person should be assigned within the company to track documentation and ensure accessibility, particularly in urgent situations where the designated person is unavailable.

How is proof of trademark use evaluated?

Evidence of genuine trademark use is assessed as a whole and cumulatively, meaning that no single piece of evidence is necessarily decisive. Ideally, proof of use is diverse, continuous, and sufficiently demonstrates the use of the trademark in the owner’s business.

The evidence must indicate the time and place of use. For this reason, for example, photographs of packaging and trade fairs should be marked with the date they were taken. Advertising campaigns on social media should specify the geographical area in which the campaign was conducted.

How can you ensure the trademark retains its value?

Evidence of trademark use is essential for a company’s brand and trademark rights—without it, your exclusive rights can be challenged, as a trademark that lacks documented evidence of use is subject to cancellation if it has been registered for more than five years. Consistent use of the trademark and careful documentation ensure that the trademark retains its value and associated legal protections.

By anticipating this issue and incorporating it into your company's brand protection strategy, you can effectively safeguard your brand, avoid unnecessary risks of losing your rights, and ensure that you can take effective action against infringing activities by others.

Do you need expert help in protecting your brand or defending your trademark rights?

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Check out our KP LegalLandscape software. It is also an excellent tool for systematically documenting the use of trademarks.