Evidence of Use in New Zealand Trade Marks: What Businesses Need to Keep

If your business owns a trade mark, filing the application is only part of the job. The real problem often appears later, when someone challenges your registration, opposes a new application, or asks whether you have actually used the brand you registered. At that point, many businesses realise they did not keep the right records. Common mistakes include relying on undated social media posts, keeping only mock-up packaging instead of proof of real sales, and using the mark in a different form from the one registered without noticing the legal risk.

Evidence of use matters because a New Zealand trade mark registration can become vulnerable if the mark is not genuinely used in connection with the goods or services it covers. It also matters when you need to show priority, defend your brand, or stop someone else trading too close to your name. This guide explains what evidence of use means in practice, when it becomes important, what records you should keep, and the common traps that catch founders before they invest in branding, print packaging, or sign new supply, distribution, or licensing agreements.

Overview

Evidence of use is the material that shows your business has genuinely used its trade mark in New Zealand for the goods or services listed in its registration. Good records make it easier to defend your registration, oppose conflicting marks, and show that your branding was not just an idea on paper.

• Keep dated proof that the trade mark was used in real trade, not just designed internally.
• Match your evidence to the exact goods or services covered by your application or registration.
• Store examples from multiple channels, including packaging, invoices, website screenshots, catalogues and advertising.
• Make sure the mark shown in use is substantially the same as the mark registered.
• Keep records in an organised system so you can retrieve them quickly if a dispute or objection arises.

What Evidence of Use Means For New Zealand Businesses

Evidence of use means proof that your business has actually used a trade mark in the market, in connection with the relevant goods or services, rather than merely planning to use it.

In New Zealand, a registered trade mark gives useful protection, but that protection is tied to real commercial use. If you register a brand and then do not use it for the covered goods or services, the registration may be exposed to challenge. This is especially relevant for startups and SMEs that file early, then pivot, delay launch, or change brand presentation while building the business.

Use usually needs to be trade mark use. In plain English, the sign must function as a badge of origin. It should identify your goods or services as coming from your business. A decorative phrase, internal project name, or one-off concept sketch will not usually help much if you later need to prove active use.

What counts as real use

The strongest evidence usually shows the mark being used publicly in trade. That can include sales activity, advertising, service delivery, or other outward-facing commercial use in New Zealand.

Useful examples include:

• product packaging showing the mark as sold to customers
• labels, tags or inserts attached to goods
• website pages offering the relevant goods or services for sale under the mark
• dated online checkout pages or order confirmations
• invoices issued under the brand
• quotes, proposals or service agreements using the mark
• brochures, catalogues and price lists distributed to customers
• advertising campaigns, whether digital, print or outdoor
• photos of signage at premises, trade fairs or market stalls
• social media promotions, where the date and brand use are clear

The more your evidence connects the mark to real trading activity, the better. A beautiful brand guidelines document may show intention, but it will rarely carry the same weight as invoices, screenshots of a live website, or packaging that was actually used in commerce.

Why the exact mark matters

The mark you use should be substantially the same as the mark you registered. Small updates may be acceptable, but major changes can weaken your position.

This is where founders often get caught. A business files a word mark, then mainly uses a stylised logo. Or it files one logo, then refreshes the design and stops using the original. Or it registers a name with one spelling but markets under a shortened version. If a dispute arises, the question becomes whether the evidence really shows use of the registered mark.

Before you invest in branding, register a domain or print packaging, compare your actual brand assets with your trade mark filings. If the business has evolved, you may need additional applications to align protection with real use.

Why the covered goods and services matter

Evidence of use should line up with the goods or services listed in the registration. Using the mark for one line of business does not automatically prove use for all items claimed.

For example, a food business might register a mark for sauces, meal kits and restaurant services. If it only sells bottled sauces, its evidence may be strong for sauces but weak for restaurant services if no restaurant ever launched. A software company may register for downloadable software, SaaS services and training. If it only provides consulting under the mark, it should not assume that use covers every registered class item.

That is why filing strategy matters. Broad specifications can look attractive at the start, but unused coverage may later become a pressure point.

When This Issue Comes Up

Evidence of use usually becomes important when your registration is challenged, when you challenge someone else, or when a commercial deal forces closer scrutiny of your IP records.

Many businesses do not think about it day to day. Then a problem appears at exactly the wrong moment, often just before a product launch, a funding round, a distribution deal, or an expansion into Australia or other markets.

Non-use challenges

A common situation is a non-use action. If a registered trade mark has not been used for the relevant goods or services for the required period, another party may try to remove it from the register. At that point, your ability to produce dated, credible evidence becomes central.

This often affects businesses that:

• registered early but delayed launch
• pivoted away from the original product offering
• paused trading during supply issues or restructuring
• used a different brand in market from the one registered
• expanded the specification further than actual operations justified

Opposition and clearance disputes

Evidence of use can also matter when you oppose another trade mark application or defend your own. If another business applies for a similar mark, your past and current use may support your case, especially where market reputation or confusion is relevant.

Founders often assume registration alone will do all the work. Registration is valuable, but practical evidence can still matter. It can help show how long the mark has been used, in what channels, for which products or services, and how customers encounter it in the real world.

Sale, investment and due diligence

Evidence of use becomes a business issue, not just a legal one, when someone is checking the value of your brand assets. Investors, buyers, distributors and commercial partners may ask whether the trade marks are registered, actively used, and properly maintained.

If your records are scattered across old laptops, agency accounts and former staff inboxes, the due diligence process becomes slower and riskier. That can affect transaction timing and bargaining power.

Licensing, franchising and distribution

If you license your brand or allow others to sell under it, record keeping becomes even more important. You may need to show how the mark is used, by whom, and under what authority.

Before you sign a contract with a distributor, reseller or brand partner, think about:

• whether the agreement clearly permits trade mark use
• whether the branding must follow approved guidelines
• who keeps samples, packaging records and campaign materials
• whether quality control obligations are documented
• how you will collect evidence of use from third parties

Strong contracts help avoid a later argument that brand use was inconsistent, unauthorised or too poorly documented to support your rights.

Practical Steps And Common Mistakes

The safest approach is to build evidence of use into your normal business admin, so you are not trying to reconstruct years of brand history after a dispute starts.

You do not need a perfect archive, but you do need a system. The best systems are simple enough that busy teams will actually use them.

Set up an evidence file from day one

Create a central folder for each trade mark. Keep it somewhere the business can access even if staff change, such as a controlled company drive or document management system.

Each file should ideally include:

• a copy of the filed and registered mark
• the list of goods and services covered
• the filing and registration dates
• dated screenshots of websites and online stores
• copies of invoices, order confirmations and customer-facing documents
• photos of packaging, labels, point of sale displays and signage
• advertising materials with publication dates
• catalogues, flyers and brochures
• samples of social media promotions with date capture
• records showing when use started and whether it has been continuous

Where possible, preserve context. A screenshot with a visible date, product page and buying function is usually more helpful than a cropped image of a logo alone.

Capture evidence at real commercial moments

The best time to keep evidence is when something goes live. Ask your team or agency to save launch-day screenshots, first-batch packaging photos, campaign copies and sales documents as they are created.

This matters before you launch online, before you send stock to retailers, and before you start a major rebrand. Those are the moments where valuable evidence either gets captured properly or lost forever.

Match records to each product or service line

Do not assume one invoice proves use across your whole business. If your registration covers several goods or services, keep examples for each active area.

A useful internal habit is to label records by:

• trade mark
• date
• goods or service category
• sales channel
• territory

That makes it easier to respond if only part of a registration is questioned.

Watch for rebrands and logo drift

A common mistake is treating all brand versions as legally interchangeable. They are not always interchangeable.

If you change the font, add or remove words, alter key design elements, or start trading under a shortened name, review whether your trade mark registrations still match what customers see. This issue often appears after a marketing refresh, packaging redesign, or agency-led update that was approved without legal review.

Before you print packaging or roll out a new website, compare the new branding with your registered marks. If the difference is significant, fresh trade mark applications may be sensible.

Do not rely only on social media

Social media can help, but it should not be your whole evidence file. Posts may be edited, removed, hard to date clearly, or disconnected from actual sales.

Use social content as supporting evidence, not the only proof. Pair it with stronger material such as:

• website sales pages
• invoices and receipts
• shipping records
• packaging photographs
• customer proposals or signed service contracts

Keep records for online use properly

Many New Zealand businesses sell online first, sometimes before they have a physical premises or printed catalogue. That is fine, but digital evidence should still be organised and credible.

For online businesses, helpful records can include:

• dated screenshots of homepage, product pages and checkout flow
• archive copies of app store listings or platform listings
• order confirmations showing the brand in use
• email campaigns promoting goods or services under the mark
• digital ads with dates and audience targeting records
• website analytics reports that support trading activity

If your business collects customer data through the site, remember that privacy compliance sits alongside branding. Trade mark protection does not replace the need for a clear privacy policy, especially where you are collecting names, emails, payment details or behavioural data.

Use contracts to support cleaner evidence

Contracts help create cleaner proof of use because they show how the brand appears in actual commerce. Customer terms, supply agreements, reseller arrangements and service contracts can all support your record set if they consistently use the trade mark.

This is especially relevant for service businesses, where there may be less physical packaging. A consultancy, software provider, design studio or training business may rely more heavily on proposals, statements of work, invoices and service agreements to show branded use in market.

Common mistakes that weaken evidence

The main risk is not usually a total absence of records. It is having records that are incomplete, inconsistent or tied to the wrong mark.

• keeping only concept art or draft designs
• using undated screenshots
• failing to store copies after a website redesign
• registering one brand but selling under another
• claiming goods or services the business never actually offered
• assuming overseas use proves New Zealand use
• relying on verbal explanations without documentary support
• letting agencies or distributors hold all the marketing records

If a dispute is likely, avoid cleaning up the story after the fact. Gather records honestly and consistently. Evidence tends to be more persuasive when it reflects ordinary business processes rather than a rushed reconstruction.

FAQs

How much evidence of use does a business need?

You need enough evidence to show genuine trade mark use for the relevant goods or services in the ordinary course of trade. A handful of strong, dated records can be more useful than a large folder of vague promotional material.

Does advertising count as evidence of use if there were no sales yet?

Advertising can help, but sales-linked evidence is usually stronger. Whether advertising alone is enough depends on the circumstances, including what was offered, when, and how clearly the mark was used in relation to the relevant goods or services.

Can I rely on use by a distributor or licensee?

Potentially, yes, but the arrangement should be properly documented and the use should be authorised. Keep the contract, brand guidelines, approvals and real-world examples of how the mark was used.

What if I changed my logo after registration?

Minor changes may be acceptable, but significant changes can create a mismatch between the registered mark and the mark actually used. If your branding has moved materially, get advice on whether new applications are needed.

Should service businesses keep evidence too?

Yes. Service businesses can keep proposals, signed contracts, invoices, website pages, pitch decks, brochures and ads showing the mark used in connection with the services actually supplied.

Key Takeaways

• Evidence of use is proof that your trade mark has been genuinely used in New Zealand for the goods or services covered by the registration.
• The strongest records usually connect the mark to real commercial activity, such as packaging, invoices, contracts, website sales pages and dated advertising.
• Your evidence should match the registered mark and the specific goods or services claimed, not just the general business brand.
• Non-use challenges, oppositions, rebrands, due diligence and licensing deals are common moments when these records suddenly matter.
• A simple internal system for saving dated brand materials can save major cost and stress later.
• If your branding has changed, or your registrations no longer reflect what the business actually sells, it is worth reviewing your trade mark strategy before you spend money on expansion.

If your business is dealing with evidence of use and wants help with trade mark registration strategy, non-use risk, licensing arrangements, and branding contract issues, you can reach us on 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.