- A registered trade mark is your strongest legal weapon in this situation
- Your first step is documentation, screenshot everything before you contact anyone
- A cease and desist letter is usually the first formal move
- Without a registered trade mark your options are narrower, but not zero
- Prevention is always cheaper than enforcement
Table of contents
- What counts as trade mark infringement in Australia?
- What to do first
- Your options if your trade mark is registered
- What if your brand is not registered?
- How cease and desist letters work
- When does a dispute go to court?
- Frequently asked questions
What counts as trade mark infringement in Australia?
Trade mark infringement happens when someone uses a sign that is substantially identical or deceptively similar to your registered trade mark, for the same or similar goods and services, without your permission.
The key word there is registered. The Trade Marks Act 1995 (Cth) protects registered owners. If your trade mark isn't registered, that Act doesn't directly apply to you. You may have other options, like passing off, but they're harder and more expensive to run.
Registration is what gives you a clear, enforceable legal right.
What should you do first if someone copies your brand?
Document everything before you contact anyone.
Screenshot the offending website, social media profiles, product listings, anything you can find. Note the date. Save copies somewhere safe. This evidence is the foundation of everything that comes next.
Do not send an angry message on Instagram. Do not call them out publicly. Do not fire off an email without legal advice first. Acting emotionally before you understand your position can actually hurt your case.
Get your evidence together. Then get advice.
What are your options if your trade mark is registered?
If your trade mark is registered, you have real, enforceable options.
A cease and desist letter is usually the first move, a formal legal letter demanding the infringing party stop using your brand, destroy infringing materials, and sometimes pay compensation. Most disputes resolve at this stage.
If they don't stop, you can escalate to the Federal Court or the Federal Circuit and Family Court of Australia. IP Australia also has processes for trade mark disputes, including opposition and cancellation proceedings.
Registered trade mark owners are in a stronger position at every stage of this process.
What if your brand is not trade marked yet?
You still have options, they're just narrower.
Passing off is a common law action that protects unregistered brand owners. To succeed, you need to prove your brand has a genuine reputation, the other party is misrepresenting their goods or services as yours, and you've suffered damage as a result.
It's harder to prove and more expensive to run than a straight trade mark infringement claim. If you're in this position, get legal advice quickly. And start your trade mark application immediately, your filing date becomes your priority date.
How do cease and desist letters work in Australia?
A cease and desist letter is a formal written demand notifying the other party that they are infringing your rights and must stop.
It sets out what they're doing wrong, what legal rights you hold, what you require them to do, and what will happen if they don't comply. It's sent by a lawyer on your behalf.
It's not a court order. They are not legally forced to comply. But a letter from a lawyer carries serious weight, it signals you know your rights and you're prepared to act on them. Most reasonable businesses take it seriously.
When does a trade mark dispute go to court?
Most trade mark disputes never reach a courtroom.
The cease and desist resolves it, or the parties negotiate a settlement. Court proceedings are expensive, time-consuming, and stressful. They're reserved for cases where the stakes are high enough and the other party refuses to cooperate.
If you reach that point, you need an experienced trade mark lawyer. But the vast majority of disputes are resolved well before then.
The clients I see in this situation fall into two camps. The ones with a registered trade mark are upset, but they have power. The ones without one are upset, and often feel helpless. I've had to tell people their options are limited because they never registered. It's one of the hardest conversations I have. Don't put yourself in that position.
Frequently asked questions about brand copying and trade mark infringement in Australia
What is trade mark infringement in Australia?
Trade mark infringement occurs when someone uses a sign substantially identical or deceptively similar to your registered trade mark for the same or similar goods and services, without your authorisation. It's governed by the Trade Marks Act 1995 (Cth).
Can I report trade mark infringement to IP Australia?
IP Australia doesn't investigate infringement between private parties, that's handled through the courts or negotiation. IP Australia does manage formal dispute processes for registered trade marks, including opposition and cancellation proceedings.
Do I need a lawyer to send a cease and desist in Australia?
Technically no, but practically yes. A letter from a lawyer carries far more weight than a letter from you personally. It signals you know your rights and are prepared to enforce them.
How long do trade mark disputes take to resolve?
It varies. A cease and desist that the other party complies with might resolve in a few weeks. Formal proceedings through the courts or IP Australia can take months to years. Early resolution is almost always better for everyone.
The best time to register your trade mark was when you started your business. The second best time is now, before something like this happens to you. Foundd Legal's Trade Mark Registration Service gets you protected and gives you the legal standing to act if you need to.
About the Author
Riz is the Founder & Director of Foundd Legal, a lawyer with 20+ years' experience and a long history of building online and ecommerce businesses.
She helps creatives and online business owners protect and grow their businesses with clear, practical legal tools that actually make sense.
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Disclaimer
We do our best to keep this content accurate and up to date, but laws change, interpretations evolve, and the internet isn't perfect. Occasionally, information may be outdated or contain errors.
This content is for general information only and isn't legal advice. If you choose to rely on it, you do so at your own discretion. For advice specific to your business, you'll need support tailored to your situation.
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