First to File Wins: Why Founders Must Trademark Early

Imagine this:

You’ve built your dream business. Your Instagram is growing, your course is selling, your audience knows your name.

Then one day… a cease and desist email lands in your inbox.

“You’re infringing on our trademark. Please stop all use of the name immediately.”

Wait, what?

You’ve been using this brand name for years. Surely you have the rights… right?

Wrong.

Welcome to the hidden reality of trademark law:

First to market ≠ first to own.

In Australia (and most countries), it’s first to file, not first to sell, scale or succeed, who gets legal ownership of a trademark.

If you don’t act fast, someone else can legally claim your name, even if you used it first. And the consequences? Brutal.

Let’s unpack why this happens, what it means, and how to protect yourself now, not later.

Why First to Market Doesn’t Protect You

Let’s be blunt: your ABN, domain, or Instagram handle does not give you exclusive legal rights to your business name.

That might feel counterintuitive. You’re out there doing the work, building a brand, serving clients, building recognition. Surely the law is on your side?

Unfortunately, it doesn’t work that way.

Here’s why:

Trade mark law in Australia is designed to protect consumers and business owners.
It operates on a “first to file” basis, meaning whoever lodges the trademark application first (and gets approved) gets exclusive rights.
Even if you’ve used the name for years, if someone else files and gets there before you… they own it.

Yes, even if they’re newer. Yes, even if they have fewer followers.

Yes, even if you think “it’s obvious I was first.”

Real Talk: The Cost of Waiting

Here’s a fictionalised-but-factual scenario inspired by real events:

❌ Case Study: The Forced Rebrand That Broke Momentum

“Bella” was a course creator who launched her brand with a catchy name in 2020. She built her reputation, grew an email list of 9,000, and even got press coverage.

But she hadn’t filed a trademark.

In early 2023, she received a letter from a legal firm.

Another coach, who had only launched 8 months earlier, had filed for the exact same name in the same education category.

Because they filed first, the rights were theirs.

Bella had two options:

Enter a costly legal dispute (with no guarantee of success)
Rebrand everything, course name, website, socials, podcast

She chose the latter. The damage?

Lost audience trust

Paused all launches for 3 months
Rebuilt her SEO from scratch
Estimated loss: $25,000+ in revenue

All because she didn’t file when she had the chance.

What Happens When Someone Files Before You?

Let’s get specific. If someone else:

Registers a trademark before you
In your industry or overlapping category (class)
And it’s confusingly similar to your brand name

They may have legal grounds to stop you from using your own name.

That could include:

A cease and desist letter
Legal threats (and costs)
Forced takedowns on social media or marketplaces
Losing your domain or handle
A complete rebrand

Even if you’ve been using the name longer, you don’t have guaranteed rights unless you file, and win, your own trademark.

Why Filing Early is Your Best Insurance

Here’s what a trademark actually gives you:

✅ Legal Ownership – You own your name/logo/tagline in your business category

✅ Exclusive Use – No one else can use it without your permission

✅ Protection on Platforms – You can request takedowns (Insta, Shopify, etc.)

✅ Peace of Mind – You can scale, invest, and pitch without fear of rebrand

Think of it as a seatbelt for your brand. You don’t need it every day. But the day you do? It’s too late to buckle up.

First to File ≠ First to Win... Always?

There are some limited cases where you can challenge a trademark, even if you weren’t first to file. This includes:

Evidence of prior use (but it’s a complex and expensive path)
Challenging an unused mark (if the other party isn’t actively using it)

But these are exceptions, not guarantees. They require legal arguments, time, money, and proof. The best protection is proactive.

Your Move: Check Your Trademark Risk Today

If you’ve never filed a trademark (or aren’t sure if yours is registered properly), you’re playing roulette with your brand.

You might be totally fine today.

But if someone else files tomorrow?

Game over.

That’s why we created Tricks of the Trademark®, our DIY-friendly, lawyer-backed course for Aussie founders who want to:

✅ Protect their brand

✅ Avoid legal overwhelm

✅ Save $2K+ in legal fees

✅ Access AI-powered tools like Marki™

✅ Get legal Q&A inside the Legally Legit Lounge®

Whether you’re a coach, creator, or creative eComm biz, this course gives you everything you need to lock down your brand name before someone else does.

Ready to protect your brand?

👉 Enrol in Tricks of the Trademark® today and file your trademark with confidence.

***Disclaimer. Please read!!***

This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.