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Trademark infringement in Australia can be defined as a violation of the exclusive rights attached to a trademark without the approval or consent of the trademark owner.
Trademark infringement is on the rise. With more and more business names being snapped up, domains, social media handles, company names – the chances for businesses to be stepping on other toes are increasing. Sometimes it can be deliberate, however a lot of times it is accidental. Regardless, it has to be taken seriously.
Now that intellectual property represents a larger part of small business in Australia, things are starting to heat up. That’s because trademark infringement damage can be just as great for a small business (size-wise) as it can be for a big business, sometimes much more.
Common examples of trademark infringement include:
Trademark infringement Australia: If you think someone has infringed your trademark or IP, please get in touch with us today via phone or the contact form on this page.
Section 120 of the Trade Marks Act 1995 (Cth) outlines the circumstances under which a person infringes a registered trademark by:
Understanding the elements of trade mark infringement is crucial for protecting your brand.
According to the Trade Marks Act 1995 (Cth) and the above, trade mark infringement in Australia occurs when a person uses a sign that is substantially identical or deceptively similar to a registered trade mark in relation to goods or services for which the trade mark is registered. Here’s a breakdown of the key elements:
A “sign” can include any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound, or scent.
A sign is considered “substantially identical” when it closely resembles the registered trade mark to the point where it is almost indistinguishable. This involves a side-by-side comparison of the marks to determine if the differences are negligible.
A sign is “deceptively similar” if it so nearly resembles the registered trade mark that it is likely to deceive or cause confusion.
This is assessed based on the overall impression given by the marks, considering their appearance, sound, and the nature of the goods or services they represent. The likelihood of confusion among consumers is a key factor.
Infringement also hinges on whether the infringing sign is used in relation to the same or closely related goods or services as those covered by the registered trade mark.
“Closely related goods or services” are those that are so similar that consumers might assume they come from the same source. This ensures that the use of the sign is likely to confuse or deceive consumers about the origin of the goods or services.
The use of the infringing sign must occur in the course of trade, meaning it must be used in a commercial context. Non-commercial or personal use typically does not constitute infringement.
If you believe your trade mark has been infringed, it is essential to seek legal advice to understand your rights and options.
At Progressive Legal, our experienced team can help you navigate the complexities of trade mark law and protect your brand from infringement. Make an online enquiry with us and we’ll get back to you within a day.
Firstly, it’s important to take the matter seriously and seek expert legal advice straight away – don’t delay!
Gather all the information and provide detailed instructions to us so we can get a head-start on the issue and the matter, then organise a call to go through our advice, next steps and way forward to deal with it appropriately.
Do not call, email or correspond with the opponent as you may prejudice your position and legal rights, it is best to seek advice first and then take the appropriate action as advised.
If you believe that someone is using your trademark without your permission, you may want to make a trademark infringement complaint. Here are the general steps you can take to make a complaint:
It’s better to get legal advice to find a resolution to a trademark infringement dispute.
Ensuring that your trademark is unique from the start can save your business valuable time and money.
Before using a trademark, conduct a trademark search to ensure that it is not already registered or being used by someone else.
It may be wise to contact a trademark attorney to help you perform a preliminary search and to determine whether your trademark is available or capable of registration. You should do this before investing in a logo or a name.
If the trademark is available, we’ll explain what your options are to secure it.
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Get your brand protected! For expert advice on trademarks, please get in touch with us today via phone or the contact form on this page.
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