What is Trademark Law in Australia?
A registered trademark is a form of Intellectual property, that grants exclusive rights to use a unique sign, brand, or name for goods and services, that distinguishes one businesses products or services from those of other businesses. In Australia this is regulated by the Trade Marks Act 1995 (Cth).
When is a Trademark Infringed?
A person infringes this right if they use a trademark sign that is substantially similar to the goods or services associated with the registered trademark.
Why it Matters?
Trademark infringement isn’t just an inconvenience — it can have real and lasting consequences for any business. When another party uses your brand without permission it can:
A. Confuse clientele: People may mistakenly believe the infringed version of your goods or services is yours.
B. Damage Reputation: If the infringed version of your brand is lower quality, customers may associate those imperfections with yours.
C. Lead to profit loss: Sales may be diverted away from your legitimate brand.
What Rights are Enforceable Under this Law?
If a trademark is registered, the owner is entitled to exclusive rights: to use the trademark, to authorise who else can use it, and an entitlement to relief.
What Options are Available when Someone Infringes your trademark?
In the event that an infringement does occur, action can be brought up in a prescribed court.
A. The court, if thinks fit, may grant an injunction that prohibits further use of the identical trademark, and;
B. At the option of the plaintiff, may seek an account of profits or damages.
This all depends on the obviousness of the infringement, the need to deter similar infringements, the conduct of the party that did the infringement (after the act and after being informed of infringement of their conduct), any benefit and any other relevant matters.
Preventing Future Infringement
Before the need to take action arises when dealing with Infringement, measures can be taken to reduce the risk:
A. Register trademarks with IP Australia.
B. Monitor your brand online and offline.
C. Educate your team and partners to understand and know how to identify potential infringements.
D. Seek professional advice.
Our Services
Trademark Infringement can be overwhelming, but you’re not alone. By understanding your rights and taking strategic action, you can prevent the misuse of your brand and protect the value you’ve worked hard to build. OpenLegal offers comprehensive legal support at every step of the way to help protect your intellectual property. This may include, but is not limited to:
1. Personalised solutions to safeguard brand assets
2. Registering trademarks
3. Patents
4. Trademark monitoring
5. Dealing with opposition claims
Contact OpenLegal today at enquiries@openlegal.com.au or 1300 937 574 to arrange a free confidential consultation and discuss the best way forward.
Jordan Sing, Intern at OpenLegal
