Use it or lose it: why no brand is too big to lose protection for non-use

Trade marks are “use it or lose it” rights. To maintain protection, brand owners need to be able to show that they have put their marks to genuine use in the course of trade. If a competitor can show that a mark has not been used as a badge of origin for any of the covered goods or services for five years, that mark may become vulnerable to partial or full revocation (i.e. cancellation). But what does it mean to genuinely use a mark? Is it based on frequency, impact, scale, or a combination? Recent high-profile disputes help to flesh out the concept and point to some practical takeaways for fending off challenges.

Revocation for non-use

In the UK, s.46 of the Trade Marks Act 1994 permits revocation where a mark has not been put to genuine use within five years of registration, or where use has been suspended for an uninterrupted period of five years. Importantly, the onus is on the trade mark owner (proprietor) to prove genuine use or to establish proper reasons for non-use (which is a high bar and largely limited to matters outside the owner’s control such as export restrictions). In practice, this means having contemporaneous evidence of real commercial use in all the product or service categories for which the mark is registered.

To tweet or not to tweet

The most recent high-profile example is the dispute between social media platform X and Operation Bluebird, a Virginia-based startup co-founded by Twitter’s former trade mark counsel. Bluebird launched Twitter.now in August 2026 as a rival platform to X and filed a petition with the US Patent and Trademark Office seeking cancellation of X's registrations for "Twitter" and "Tweet" on abandonment grounds. 

Bluebird argued that following Elon Musk’s acquisition of Twitter and rebrand to X, the company stopped using a range of marks associated with the Twitter brand. Under US trade mark law, three years of non-use raises a presumption of abandonment, which the owner must rebut. X responded by filing injunction proceedings against Bluebird in the Delaware District Court, pointing to its continued use of the “Twitter” and “Tweet” marks and the blue bird logo, including the twitter.com domain redirect, social media accounts that X has kept under the “Twitter” name, retained branding on certain of its webpages, client and marketing materials (such as customer ads-help pages, guides for its advertising products and vendor onboarding materials), its media and advertising partners using the formulation “X (formerly Twitter)”, and continued third-party licensed use of the blue bird logo. 

Bidding adieu to all the birds

The Delaware District Court issued a preliminary injunction partially ruling in favour of X and blocking Operation Bluebird from using the “Twitter” name, citing that X still actively uses the “Twitter” brand in places like the Apple App Store. However, the Court denied X's request for a preliminary injunction for “Tweet” and the blue bird logo, finding that Operation Bluebird is likely to succeed in proving X abandoned those specific marks. Unlike the Twitter marks, the “Tweet” and the blue bird logo were found in outdated help centre guidance and in older software versions. The success in relation to “Twitter” is interesting because it highlights that using “formerly known as [BRAND]” can be used to preserve goodwill in a mark, even though, as Bluebird suggested, it shows an intention to no longer operate under that brand. 

While the preliminary ruling may be a relief to some, it also highlights that trade mark use is time critical. And at some point, brands may drop historic references. Ultimately, X may be challenged again if it does not keep up its active use of the Twitter marks. There are plenty of examples of prominent brands in the UK and EU losing world-famous marks for non-use; Apple lost its EU registrations for the historic slogan “THINK DIFFERENT”, whereas McDonald’s lost “Big Mac” for poultry products in the EU.

What constitutes genuine use?

“Genuine use” means having factual proof of commercial exploitation of a mark in relation to goods or services, rather than token activity performed just to preserve registration. UK courts will consider the wider context, including the nature of the goods or services, the characteristics of the market, and the scale and frequency of use. What constitutes genuine use for a mass-market consumer product may differ significantly from what is expected of a business operating in a niche B2B sector. Importantly, internal use (such as business plans or board papers) is unlikely to count, but there is no de minimis threshold. Infrequent but meaningful commercial use may qualify if it can be justified by reference to the relevant market.

Competitors and new market players may deploy non-use revocation as a strategic tool to clear inconvenient marks and make room for their own. Trade marks are particularly vulnerable to challenge the following: (i) corporate rebrands (where legacy marks fall out of active use); (ii) M&A activity (where acquired portfolios may not be fully integrated); (iii) product phase-outs or discontinuations; and (iv) international expansions, where entry into a new market may take longer than the five-year use window allows. Even slight variations to branding (such as stylistic refreshes to logos or wordmarks) can expose the original registered form to invalidity or revocation.

Brands will need sensible processes in place to monitor their portfolio and withstand these types of challenges. Portfolios should be reviewed regularly (particularly following the high-risk inflection points noted above) to identify any legacy or dormant marks that may be vulnerable. Equally important is maintaining contemporaneous evidence of genuine use. This includes: dated sales invoices and financial records specific to each product or service category; promotional and marketing materials showing the mark as used; and photographs or samples of branded goods. Keeping evidence organised and retrievable will make it far easier to defend against a revocation challenge if one arises.

At Macfarlanes, we advise prominent clients on brand protection and commercialisation. If you are navigating a rebrand, acquisition, or restructure and would like to discuss any of the matters raised in this article, please do get in touch.