Trademark infringement is a serious issue that can affect businesses of all sizes. In Australia, trademarks are protected under the Trade Marks Act 1995, which sets out the rules and regulations for registering, protecting, and enforcing trademarks.
In this guide, we will discuss trademark infringement in Australia, common infringements, how to check if someone is infringing your trademark, and what to do when you catch someone infringing your trademark.
Trademark Infringement in Australia
Trademark infringement occurs when a third party uses a trademark that is identical or similar to another party’s registered trademark in relation to goods or services that are similar or identical to the goods or services covered by the registered trademark.
In Australia, trademark infringement is a civil offence that can result in damages, an injunction, and other remedies. The action must be brought before a court of competent jurisdiction (generally the Federal Court, the Federal Circuit Court or another court exercising Federal jurisdiction)
Small Business Trademark Issues
Small businesses are particularly vulnerable to trademark infringement because they often lack the resources to conduct extensive trademark searches and/or register their trademarks.
As a result, small businesses may unintentionally infringe on someone else’s trademark or have their own trademarks infringed upon.
To avoid these issues, you should take the following steps:
- Conduct a trademark search with IP Australia before choosing a business name or logo.
- Register your trademark with the Australian Trademarks Office.
- Monitor your trademark for potential infringements.
- Take prompt action if someone infringes on your trademark.
Common Trademark Infringements
Trademark infringement can take many forms, but some of the most common types of infringement include:
- Using a trademark that is identical or similar to another party’s registered trademark in relation to similar goods or services.
- Using a trademark that is confusingly similar to another party’s registered trademark in relation to similar goods or services.
- Using a trademark that is identical or similar to another party’s registered trademark in a domain name or social media handle.
- Using a trademark that is identical or similar to another party’s registered trademark in advertising or marketing materials.
How to Check if Someone is Infringing Your Trademark
If you suspect that someone is infringing on your trademark, there are several steps you can take to confirm your suspicions:
- Conduct a trademark search to see if the other party has registered a similar trademark.
- Monitor the other party’s use of the trademark to see if it is causing confusion in the market.
- Consult with a trademark lawyer to get an expert opinion on whether the other party’s use of the trademark is infringing on your rights.
What to Do When Someone Infringes Your Trademark
If you believe that someone is infringing on your trademark, you should take the following steps:
- Contact the other party and request that they stop using the infringing trademark.
- Send a cease and desist letter to the other party, outlining your concerns and requesting that they stop using the infringing trademark.
- If the other party does not respond to your requests, you may need to take legal action to protect your trademark rights.
Consult with a trademark infringement lawyer to determine the best course of action and to ensure that your trademark rights are protected.
Trademark infringement is a serious issue that can have significant consequences for businesses of all sizes.
As a small business owner, you may not have the resources to actively monitor for trademark infringements or to fight cases of infringement when they arise. It is wise to seek out professional legal help from the start, to ensure your legal rights are protected.
By following these guidelines, you can help ensure that your trademark rights are protected and that your business can thrive in the Australian marketplace.
Ian Aldridge has almost 20 years experience in providing legal advice to SMEs both in Australia and in the UK. He founded Progressive Legal in 2014 with a NewLaw view of providing better services to growing Australian businesses. He is passionate about protecting them and their owners and has a wealth of experience.