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Black Friday is known for being the time of the year for businesses to offer impressive discounts to customers following Thanksgiving. In 2025, with the continued growth of online retail and hybrid shopping, you’ll see countless businesses using the term ‘Black Friday’ to promote their sales – even Down Under.
However, ‘Black Friday’ is actually a registered trade mark in Australia. If your business has recently used the term in your promotions, it’s important to understand trademarking and how it might affect your advertising and marketing strategy.
What Is A Trade Mark?
A trade mark is a type of Intellectual Property (IP) that protects your business’s unique ideas, brand name, logo or slogan from unauthorised use. It gives you the exclusive rights to use that distinctive element, ensuring competitors can’t capitalise on your reputation.
For example, McDonald’s ‘Big Mac’ has been a registered trademark since 1973. This means the trade mark ‘Big Mac’ is exclusively theirs – no other business operating in the same class or category can use it. In a notable recent dispute, McDonald’s argued that Hungry Jack’s ‘Big Jack’ was registered in bad faith and was “deceptively similar” to its trademark (you can read more about this here).
This legal protection allows a business to take action against anyone using their registered trademark – or a similar sign – in a way that is likely to confuse customers.
They might also claim the profits generated from the unauthorised use of their trademark, reinforcing their exclusive rights as the rightful owners.
Is ‘Black Friday’ A Registered Trademark?
As reported by the Sydney Morning Herald, Factory X – a prominent national retailer – registered the term ‘Black Friday’ in the clothing and fashion category back in 2007. Although that registration dates back nearly two decades, it continues to be enforced in 2025, meaning that within the fashion industry no other business should use ‘Black Friday’ for their own trade purposes without risking legal action.
There is, however, a complication. ‘Black Friday’ is an extremely common term associated with the popular November sales event. Chances are you’ve seen several stores using the term across their websites and on social media platforms.
Nonetheless, Factory X has indicated its intention to take legal action against other fashion retailers and brands that use ‘Black Friday’ to promote their sales without appropriate authorisation. Their legal notices even state an aim to recover profits generated from such unauthorised campaigns.
While Factory X is well within its rights to defend its trademark, the situation can be inconvenient for businesses that use the term in what many consider to be common advertising practice during the sales period.
Notably, Harvey Norman once attempted to have ‘Black Friday’ removed from the IP Australia register, but this effort was unsuccessful – a decision that remains unchanged in 2025.
Can I Oppose A Trade Mark?
There are several ways to approach trade mark oppositions and challenges when you believe a registration is unfair or overly broad.
A popular example of a trade mark infringement is the case involving In-N-Out Burger. When the Australian food chain Down N Out was introduced, the American company argued that the name and logo were too similar to their registered trademark, potentially misleading customers. You can read more about this case here.
Generally speaking, a trade mark can be challenged on the grounds that it lacks distinctiveness. Given that ‘Black Friday’ is widely used to denote a period of sales, Factory X’s claim might be considered less robust by some critics – although legal precedents and IP Australia’s guidelines make such oppositions difficult to sustain.
But, as IP lawyer John MacPhail pointed out in the Sydney Morning Herald’s article, removing the term ‘Black Friday’ from the IP Australia register would require businesses to prove that the term is generally accepted within the industry – a significant hurdle, especially as the term remains more popular in the US than in Australia.
Looking ahead into 2025, the rise of digital retail and social media marketing has made it even more important for your business to protect its brand. With increasing vigilance from IP Australia and evolving consumer law practices, regularly reviewing and renewing your trademark – for instance, through our Trade Mark Renewal service – is essential. For businesses venturing into e-commerce, it’s also prudent to ensure that your website’s terms and conditions align with modern practices, providing an extra layer of legal protection. Additionally, if you’re keen to understand the full spectrum of your rights and obligations under the Australian Consumer Law for Businesses, our resources offer detailed guidance to help you navigate these complex issues.
Need Help?
If your business is navigating the world of trade marks and intellectual property, Sprintlaw can help. Our experienced team of lawyers is well-versed in the nuances of trademark law and can offer you valuable advice if you’re facing a trade mark opposition or infringement issue.
Feel free to reach out to us at team@sprintlaw.com.au or call us on 1800 730 617 for an obligation free chat.
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