No. A Trade Mark registration is not absolutely necessary to protect your brand. However, unregistered rights are very difficult to enforce and they carry an extremely high evidential burden when proving that you have sufficient grounds to establish and support a passing-off action.
To enforce unregistered rights you need to prove [a] that you have a reputation or own goodwill in a name, [b] that the other party’s use of an identical / similar name is a deceptive misrepresentation, and [c] that there is a serious likelihood of damage or that actual damage has been suffered.
Enforcing unregistered rights is an extremely expensive exercise compared to simply enforcing a Trade Mark registration. Allegations of passing-off are usually taken with a pinch of salt if the party in the wrong believes the owner of the goodwill cannot afford to commence an expensive passing-off action. This is not the case with registered Trade Mark protection, where threats of infringement are taken much more seriously because the legal rights obtained are much stronger.
