For many entrepreneurs, obtaining a trademark registration certificate represents the end of a process: confirmation that the sign is now protected and that this right is definitive. Under this logic, the certificate is perceived as absolute and permanent protection against third parties. However, this perception, although widespread, does not correspond to the legal reality that regulates intellectual property rights.
The contemporary trademark system, inspired by international instruments such as the Paris Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), is structured on an essential premise: “trademarks exist to distinguish products or services in economic traffic, not to occupy space in administrative registries.” In this sense, the granting of registration is not an end in itself, but rather the starting point of a legal relationship conditioned on the effective use of the sign in commerce. A trademark that is not used not only weakens, but also becomes legally void of content and is exposed to extinction.
Legal doctrine has been consistent in pointing out that the distinctive function is the raison d’être of the trademark. Authors such as Fernández-Novoa warn that trademark law does not protect “inert” signs, but rather those that effectively fulfill their identifying function for consumers. Along the same lines, the jurisprudence of the Court of Justice of the Andean Community (TJCA) has reiterated that use is not a merely formal requirement, but a structural element of trademark law. From this perspective, the idea of automatic and perpetual protection is incompatible with the very nature of the trademark.
The right granted by the registration of a distinctive sign therefore imposes on the owner of a registered trademark a clear obligation to use it, subject to the following conditions:
- The use must be genuine, public, and effective in commerce.
This use cannot be symbolic, apparent, or merely internal. Administrative authorities and courts have been clear in rejecting practices such as the mere possession of corporate stationery, sporadic use without commercial activity, or isolated presence on social media without a real offer of goods or services on the market. The Court of Justice of the Andean Community, for example, has held that use must be “suitable for creating or maintaining real market share”, excluding those acts that lack effective economic impact. In other words, the trademark must be alive in the market, not just in the owner’s files.
- The trademark must be used in direct relation to the goods or services for which the registration was granted.
The use of the trademark in connection with goods or services other than those protected poses a significant risk. The doctrine agrees that extrapolated use, even if legitimate from a commercial perspective, does not preserve the registration with respect to the unused classes, unless there is a recognized and legally relevant connection.
- The sign must be used in the form in which it was registered (allowing for some minor variations).
For the use to be legally relevant, it must be made as the trademark was registered or, at least, without altering its distinctive character. Regional case law has consistently held that the use of a trademark with substantial modifications, unregistered graphic variants, or different names may be insufficient to maintain the validity of the right. If the sign used in commerce does not allow the consumer to identify it as the same as the one appearing in the registration, such use does not validate the exclusive right.
The direct consequence of failing to comply with the obligation of use is the possibility of the trademark registration being declared expired when the trademark has not been used for a certain period, generally three or five consecutive years. This action for revocation due to lack of use may be brought by any third party with a legitimate interest. Once the proceedings have been initiated, the burden of proof falls on the registered owner, who must demonstrate effective use within the legal time limit. If they fail to do so, the authority declares the registration to be extinct, with full effect: the owner loses their exclusive right, even if the certificate is still formally valid at that time.
In line with what has been indicated in the preceding paragraphs, in this type of revocation procedure, it is not enough to allege that the trademark has been used. Use must be proven by objective, verifiable, and commercially relevant evidence, such as invoices, distribution contracts, advertising material, catalogs, packaging, labels, or documentation evidencing the actual insertion of the product or service in the market. This evidence must demonstrate not only the existence of use, but also its continuity, its public nature, and its direct link to the products or services covered by the registration. In the absence of such evidence, the trademark is legally defenseless.
In conclusion, an unused trademark is a legally weak trademark. Registration grants a right, but its preservation depends on effective and strategic use in the market. Trademarks are not passive assets; on the contrary, they are living business tools, and as such, they require management, consistency, and evidence.
As a key recommendation, it is essential for companies to conduct a comprehensive audit of the effective use of their portfolio of distinctive signs, which, in practice, often consists of trademarks registered preventively that were never introduced to the market, variants used in commerce that do not match the actually registered sign, as well as inactive trademarks from merger or acquisition processes that were not incorporated into the actual business operation.
Based on this diagnosis, a systematic and documented policy for preserving evidence of use should be implemented, aimed at demonstrating the actual, public, and continuous use of the trademarks in accordance with their registration. Only through active management of the trademark portfolio is it possible to strengthen its legal robustness, minimize the risk of revocation actions, and avoid the loss of strategic assets to more diligent competitors. In an increasingly competitive and litigious environment, trademarks are not preserved by the mere existence of a certificate, but by their effective presence in the market.