If you’ve ever applied for a trade mark in New Zealand and hit a snag (like an objection or a competing application), you’ll know the process can feel surprisingly technical, surprisingly fast, and a little bit stressful.
One of the most practical ways to strengthen your position is by preparing an Evidence of Prior Use Report-a clear package of documents and explanations showing you’ve genuinely been using your brand before someone else.
This guide is current and reflects how trade mark disputes and objections are commonly handled in New Zealand right now, including the modern reality that a lot of “use” happens online. If you want to set your brand up properly from day one, getting your evidence organised early can save you a lot of headaches later.
What Is An Evidence Of Prior Use Report (And Why Does It Matter)?
An Evidence of Prior Use Report is a structured bundle of materials that shows how, when, and where you’ve used a trade mark in the real world. It’s not just a pile of screenshots-done properly, it tells a story that’s easy for IPONZ (the Intellectual Property Office of New Zealand) to follow.
In plain terms, a strong report answers questions like:
- What sign are you using (word, logo, tagline, packaging)?
- Who is using it (you personally, your company, a licensee)?
- When did use begin (with dates you can prove)?
- Where is it used (NZ market, online sales into NZ, physical locations)?
- How is it used (on products, ads, invoices, website checkout pages, social media)?
This matters because trade marks are about distinctive brand identifiers used “as a trade mark” (meaning: to distinguish your goods/services from someone else’s). In many disputes, the winner isn’t the person who feels most entitled to the name-it’s the person who can prove their position clearly and credibly.
Trade mark rights in New Zealand sit under the Trade Marks Act 2002, and the practical reality is that evidence is often what moves a matter from “uncertain” to “strong.”
When Would You Need Evidence Of Prior Use In New Zealand?
You won’t need an Evidence of Prior Use Report for every trade mark application. But when you do need it, you usually need it quickly-and you want it to be persuasive.
Common situations where prior use evidence becomes important include:
1) You Receive An IPONZ Objection (Or A Challenge)
Sometimes IPONZ raises issues during examination, or there’s a dispute pathway where you need to show why your application should proceed. Prior use can be relevant depending on the nature of the objection and the arguments being made.
2) Someone Else Applies For A Similar Trade Mark After You Started Using Yours
This is one of the most common “but we were here first” scenarios. A prior use report can support your position when there’s a competing claim to similar branding.
3) You’re Opposing Someone Else’s Application
If a competitor tries to register a brand that’s too close to yours, you may need to show your earlier use in the market to support an opposition (depending on the grounds).
4) You’re Responding To An Opposition Against Your Application
If your application is being opposed, evidence can become central. The other side may claim confusion or prior rights, and you may need to respond with proof of your own use, your market presence, and your timeline.
5) You’re Handling A Real-World Brand Dispute
Even outside a formal IPONZ process, prior use evidence can be a key part of resolving disputes (for example, when sending letters, negotiating coexistence, or deciding whether it’s worth escalating things).
And if you’re dealing with misuse of your brand, it’s often helpful to understand the broader picture around Trademark infringement and what options you may have.
If you’re at the stage of asking “should I register at all?”, it’s usually worth sorting that early-waiting until there’s a dispute is when trade mark protection becomes more expensive and more urgent. A good starting point is Need a trademark.
What Counts As “Use” For Prior Use Evidence?
This is where a lot of business owners get caught out. You might have been working on the brand for months (or years), but not everything counts as trade mark “use” for evidence purposes.
Generally, helpful evidence shows the trade mark being used publicly and commercially in relation to the relevant goods or services.
Strong Examples Of Prior Use Evidence
- Invoices, receipts, and purchase orders showing sales under the brand name (especially in NZ).
- Packaging, labels, and product photos showing the trade mark on the product or packaging.
- Website pages where customers can buy or enquire (product pages, booking pages, checkout pages).
- Advertising and marketing materials (digital ads, flyers, catalogues, signage).
- Social media posts that clearly promote your goods/services under the trade mark (with dates).
- Media coverage (articles, interviews, sponsored content) showing the brand in market.
- Marketplace listings (e.g. online store listings) showing the product and branding.
- Distributor/stockist evidence such as agreements, stockist listings, or third-party sales records.
Evidence That’s Often Weaker (But Still Useful In Context)
- Draft logos and brand concepts (helpful for timeline context, but not strong proof of public trade mark use).
- Internal emails or messages about brand planning (shows development, not necessarily market use).
- Domain registrations alone (owning a domain isn’t the same as using a trade mark in trade).
One more key point: evidence is usually strongest when it’s tied to dates, locations, and verifiable records. Screenshots without context or date information can be challenged, so you want to present them carefully.
If you’re collecting this information through your website (like customer details, bookings, or mailing lists), make sure your privacy settings and notices are handled properly too. Having a fit-for-purpose Privacy Policy is a practical way to stay compliant with the Privacy Act 2020 and build trust while you grow.
How Do You Prepare An Evidence Of Prior Use Report? (Step-By-Step)
A good Evidence of Prior Use Report isn’t about dumping every document you’ve ever created into a folder. It’s about building a clean, credible timeline that supports the legal point you’re making.
Here’s a practical step-by-step approach.
Step 1: Confirm The Exact Trade Mark And Ownership
Start by being very clear on:
- What the trade mark is (word mark, logo, or both).
- Whether it’s been used consistently (or if it has changed over time).
- Who owns it (you personally, your company, or another entity).
This matters because you want your evidence to match the sign you’re claiming, and you want to show that the use is connected to the correct owner.
If your company structure has changed (for example, you started as a sole trader and then incorporated), it’s still manageable-but the report should explain the timeline so it doesn’t look inconsistent.
Step 2: Define The Relevant Goods/Services And The Relevant Dates
Prior use evidence is usually assessed in a specific context. For example:
- What goods/services are you actually using the trade mark for?
- When did you first use it in relation to those goods/services?
- Are there different launch dates for different product lines?
If your trade mark application covers a broad range of goods/services, but your evidence only shows a narrow subset, you’ll want to be careful about how you present that.
Step 3: Build A Timeline (Then Collect Evidence To Match It)
Instead of collecting random documents first, draft a timeline like this:
- Date: First public announcement or launch
- Date: First sale (with invoice)
- Date: First ad campaign
- Date: First stockist / first wholesale order
- Date: Major branding changes (logo refresh, packaging update)
Then, for each milestone, collect 1–3 pieces of strong proof. It’s usually better to have fewer, clearer pieces than dozens of repetitive screenshots.
Step 4: Capture Digital Evidence Properly
Because so much modern trade happens online, you’ll often rely on digital evidence. A few practical tips:
- Use full-page screenshots showing the URL and the trade mark in use.
- Include date context (for example, archived pages, dated posts, or platform timestamps).
- Keep native files where possible (original image files, ad manager exports, invoices in accounting software).
- Avoid editing screenshots (cropping is fine for clarity, but don’t change content).
If you sell through third-party platforms, don’t forget you can often export sales reports showing dates and product names.
Step 5: Write A Clear Narrative (Not Just An Index)
Your report should “connect the dots” for the reader. Think of it as guiding IPONZ (or the other side) through what happened.
A simple narrative structure might include:
- Background (who you are and what the business does).
- The trade mark (what it is and how it’s used).
- First use (the earliest evidence and what it shows).
- Ongoing use (how use continued and expanded).
- Market presence (sales regions, customers, advertising reach).
If you’re preparing evidence as part of a broader brand protection strategy, it often goes hand-in-hand with getting your trade mark properly filed and managed. For many businesses, the most straightforward step is to Register your trade mark early, then keep good records as you grow.
Step 6: Organise Your Exhibits So They’re Easy To Follow
Presentation matters more than people expect. Even strong evidence can lose impact if it’s confusing.
Best practice is to:
- Label each document clearly (e.g. “Exhibit A – Invoice dated 12 March 2022”).
- Order exhibits chronologically.
- Reference exhibits in your narrative (so the reader knows why each document matters).
- Include a short description for each exhibit.
If you’re trying to prove use over a long period, you can also group evidence into “phases” (launch phase, growth phase, expansion phase).
Step 7: Check Consistency (This Is Where Disputes Are Won Or Lost)
Before you finalise anything, cross-check these consistency points:
- Is the spelling exactly the same across key evidence?
- Is the owner name consistent (or clearly explained if it changed)?
- Do your goods/services match what you’re claiming?
- Are the dates clear and not contradictory?
- Does the evidence show trade mark use (not just a business name in small print)?
If anything looks messy, it doesn’t mean you’ve “lost”-it just means you need to explain it properly and present what you have in the strongest possible way.
Common Mistakes To Avoid (And How To Fix Them)
Most Evidence of Prior Use Reports fail for very fixable reasons. Here are the big ones we see.
Social media can help, but it’s rarely the whole story. Platforms change, posts can be deleted, and screenshots can be challenged.
Fix: Pair social posts with invoices, order confirmations, website pages, packaging photos, or third-party evidence (like stockist listings).
Mistake 2: Evidence Doesn’t Show The Trade Mark “As A Trade Mark”
If your brand appears only as a handle, a footer, or a company name in tiny text, it might not clearly show the sign being used to distinguish the goods/services.
Fix: Include product photos, packaging, marketing creatives, and webpages where the brand is front-and-centre.
Mistake 3: The Timeline Is Unclear Or Jumps Around
If the reader has to guess when use started or how it progressed, your argument loses force.
Fix: Build a chronological report with labelled exhibits and a simple narrative tying everything together.
Mistake 4: You Rely On Documents You Can’t Authenticate
Random screenshots, undated PDFs, or edited marketing files can raise questions.
Fix: Use documents generated in the ordinary course of business (accounting records, ad platform reports, customer invoices), and keep originals where possible.
Mistake 5: You Underestimate How Technical The Process Can Get
Prior use evidence isn’t just “proof you existed.” It’s evidence designed to support a specific legal position, under specific procedures, with specific deadlines.
Fix: Get advice early so you’re collecting the right evidence (and not wasting time gathering irrelevant documents). If you need a more formal supporting document as part of your overall IP position, an Evidence of Use approach can be tailored to the situation you’re dealing with.
Key Takeaways
- An Evidence of Prior Use Report is a structured way to show you used your trade mark in the market before someone else, using clear dates and credible documents.
- Strong evidence usually includes invoices, packaging photos, website pages, advertising records, and third-party sales/stockist proof-not just social media screenshots.
- Your report should tell a simple story: what the trade mark is, who owns it, when use started, and how use continued in New Zealand.
- Organisation matters: label exhibits, present them chronologically, and reference them in a short narrative so the reader can follow your timeline easily.
- Consistency is crucial-spelling, branding, ownership details, and the link between the trade mark and your goods/services should all line up.
- If you’re building a brand for the long term, trade mark protection and record-keeping go hand-in-hand, and it’s usually easier (and cheaper) to do it early than during a dispute.
If you’d like help preparing an Evidence of Prior Use Report, protecting your brand, or dealing with a trade mark dispute, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
