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.
For expert legal advice, please get in touch with us today via phone or the contact form on this page.
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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A trademark infringement lawyer or attorney can help you in several ways if someone or another business has used your trademark without your permission. Here are some of the ways a trademark infringement lawyer can assist you:
Overall, a specialist trademark lawyer can help you navigate the complex legal landscape of trademark law and protect your valuable intellectual property.
Get your brand protected! For expert legal advice, 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:
Please note: names have been changed in the following trademark infringement case study.
The scenario of trademark infringement
Michael has a famous surname. He’s a public speaker, author and inspirational coach. He shares his surname with an international corporation. Although he didn’t realise it, some of the activities he was conducting were actually infringing the same activities of this corporation.
When Michael filed his trademark application, very soon after he received a letter from the largest law firm in the world! Acting on behalf of the international corporation, they were suspicious of his use of the name. And they were obviously very keen to make sure he didn’t misuse it, or infringe on their existing copyright protections.
Luckily Michael came to us as soon as he received the opposition to his trademark application. We were able to negotiate with the international corporation regarding the trade mark.
This case had a good outcome in what could have been an extremely costly and lengthy process of opposition and appeal against Michael’s trade mark application.
The moral of the story…
Always file your trade mark applications as soon as possible.
The headstart process is extremely helpful in identifying whether there are likely to be any oppositions to an application either by another party or by IP Australia. It’s no guarantee, as a business may oppose your application, but it’s a great start.
If you have filed the application yourself and receive any opposing correspondence, don’t delay – seek legal advice immediately – as time is of the essence.
Contact us today if you require any assistance with a dispute resolution matter. We are highly professional and skilled trade mark infringement lawyers that proudly serve clients Australia wide.
Winning a trademark infringement litigation can be complex and depends on various factors such as the strength of your evidence, the extent of the alleged infringement, and the effectiveness of your legal strategy.
Here are some general steps you can take to increase your chances of success:
Conduct a thorough investigation: Gather as much evidence as possible to support your case. This may include documentation of your prior use of the trademark in question, sales figures, and customer feedback.
Hire a competent trade mark infringement lawyer: Work with an experienced intellectual property attorney who has a proven track record of success in trademark litigation. They can help you build a strong case, navigate legal complexities, and increase your chances of success.
Understand the strengths and weaknesses of your case: It’s important to have a clear understanding of the merits of your case and any weaknesses or potential obstacles you may face. This will help you develop a strategy that leverages your strengths and addresses potential weaknesses.
Develop a strong legal strategy: Develop a clear and effective legal strategy that is tailored to the specifics of your case. This may involve seeking a temporary restraining order, filing a counterclaim, or pursuing alternative dispute resolution options.
Be proactive: Take proactive measures to protect your rights and demonstrate that you are taking the allegations seriously. This may include discontinuing any infringing use of the trademark and initiating legal action if necessary.
Be patient and persistent: Trademark infringement litigation can be a lengthy process, so it’s important to remain patient and persistent in pursuing your case. Work closely with your lawyer, and be prepared to adapt your strategy as needed based on new developments in the case.
In Australia, trademark infringement laws are governed by the Trade Marks Act 1995 (Cth) and the common law.
Here are some key provisions of the law:
The penalties for trademark infringement in Australia vary depending on the specific circumstances of the case.
Here are some possible penalties:
It’s important to note that the penalties for trademark infringement will vary depending on the severity of the infringement and the damages suffered by the trademark owner. In addition, the Courts may take into account any mitigating factors, such as the infringing party’s level of knowledge or intent, in determining the appropriate penalty.
Copyright infringement occurs when someone or a business violates the exclusive rights of a copyright owner without their permission. These exclusive rights include the right to reproduce, distribute, and display the copyrighted work publicly.
Copyright protection covers literary, artistic, musical, and other creative works.
Examples of copyright infringement include copying and distributing a copyrighted movie, publishing a book without the author’s permission, or using copyrighted music in a commercial without obtaining the necessary licences.
Trade mark infringement, on the other hand, occurs when someone uses a registered trademark without the owner’s permission in connection with goods or services that are identical or similar to those covered by the trademark registration.
Trademark protection covers brand names, logos, slogans, and other elements that are used to identify a specific product or service – as a badge of origin.
Examples of trademark infringement include selling counterfeit goods that bear a registered trademark, using a company’s logo without their permission, or registering a domain name that is identical or similar to a registered trademark or another business’ name or trademark.
Some of the damages for trademark infringement can be the following:
Damages that can be obtained for trademark infringement can vary depending on the specific circumstances of the case and the laws of the jurisdiction where the infringement occurred.
In addition, the damages that are awarded may depend on the strength of the evidence presented and the effectiveness of the legal strategy employed by the trademark owner.
Flagrancy of the conduct can also be taken into account. Expert evidence can be provided to assist the Court in determining what amount of damages can be appropriate in the specific case.
A Google Ads trademark infringement refers to the unauthorised use of a registered trademark in Google Ads campaigns without the owner’s permission.
This occurs when a business uses someone else’s trademarked brand name or logo in their ad text or keywords to drive traffic to their own website or promote their products/services. Such actions can mislead consumers, dilute the trademark owner’s brand value, and create unfair competition.
Google has policies in place to address trademark infringement in its advertising platform and provides mechanisms for trademark owners to file complaints and request the removal of infringing ads.
If you find someone engaging in a Google trademark infringement, or someone using your business name in a Google Ads campaign, please get in touch with us today via phone or the contact form on this page.
Business name infringement refers to the unauthorised use of a registered or established business name by another company or individual. It occurs when a business uses a name that is identical or confusingly similar to an existing business’s name, creating a likelihood of confusion among consumers.
This infringement can occur within the same industry or across different sectors. Business name infringement can lead to customer confusion, loss of market share, damage to the reputation of the original business, and potential legal consequences.
If you find someone infringing your business name, please get in touch with us today via phone or the contact form on this page.
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