When a trade or service mark is not registrable it may still be entitled to certain protection, i.e. a passing-off action. Passing off is available where there is a prospect of confusion of identity through the unauthorised use of similar marks or get up, and such use damages, or is likely to damage the goodwill and reputation of a business.
Unregistered marks and passing off can apply to virtually any name, mark, logo or get-up which distinguishes a company, business, product or service.