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Is it possible for two businesses to have the same (or similar) name trade mark?

By registering a trade mark, you (the owner of the trade mark) get exclusive rights over what you choose to trade mark IN the classes of good and services you nominate (and related classes). There are  45 classes of goods and services and over 60,000 claims within those classes, making choosing the appropriate classes for the goods and services an important step both for the initial registration but continued protection of the brand.  

Failure to do so may result in your trade mark not sufficiently protecting your brand or you not being able to challenge or sue copycats if they use your trade mark without your permission. 

That all being said, how can two completely different businesses trade mark the exact same name?  

Now, whilst a trade mark owner gets exclusive rights to the name in their classes or related classes, they don’t obtain a monopoly over the word for EVERY single class of goods and services.  

As an example, you might register the trade mark “FOTOSAURUS” under goods class 9 as you sell cameras and services class 41 as you offer photography workshops.  
Someone else might register the trade mark ‘FOTOSAURUS’ within two goods classes of class 25 for children’s clothing and class 28 for toys.  

As long as the two businesses don’t start selling the same goods or offering the same services OR related services as the other – they can both co-exist on the register as they offer ‘unrelated’ products and there is a very low likelihood (if any) of consumers mistakenly purchasing a children’s t shirt instead of a digital SLR camera, thinking they are from the same brand.  

Now, if the other business DOES start to sell the same goods or offer your services, they will be infringing on your trade mark and you can take legal action to enforce your rights, from a polite reminder to mediation to a court injunction.   
Alternatively, if you see that there is a trade mark on the register for a class that you are coveting and the owner is NOT using it – you can take action too – either by contacting the trade mark owner directly or issuing a notice via IP Australia.  
Not sure on classes, think you have a copycat or just want to talk trade marks? Book in a trade mark discovery call today.




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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. 


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