Honest Concurrent Use: When Similar Trademarks Can Coexist In Australia

When you’re building a startup, your brand name can feel like everything. It’s the thing customers remember, investors repeat, and your team rallies around.

So it’s a shock when you find out another business is using (or has registered) something similar. Sometimes it’s a direct clash. Other times it’s more awkward: both brands have been operating for a while, both seem genuine, and neither is trying to copy the other.

This is where the idea of honest concurrent use often comes up.

In Australia, honest concurrent use can be a pathway for two similar trade marks to coexist, even where there’s potential confusion on paper. But it’s discretionary (not automatic), and it’s not a “get out of jail free” card. If you’re a startup trying to protect your name (or respond to a conflict), understanding how honest concurrent use works can help you make smart, commercial decisions early.

Below, we’ll unpack what honest concurrent use means, when it matters, what evidence tends to help, and what practical steps you can take to reduce risk while keeping your growth plans on track.

What Is Honest Concurrent Use In Australian Trade Mark Law?

Honest concurrent use is a concept in Australian trade mark law that may allow registration of a trade mark even if there is an earlier, similar trade mark on the Register. It typically arises as an exception to objections under section 44 of the Trade Marks Act 1995 (Cth), and IP Australia (or a court, if it ends up there) has a discretion about whether registration should proceed.

In plain English, it’s the idea that:

• two businesses have been using similar marks at the same time (concurrent use), and
• that use has been genuine, in good faith, and not intended to take advantage of the other business (honest).

For startups, honest concurrent use usually matters in one of these situations:

• You applied for a trade mark and received an objection because there’s an earlier similar mark.
• Another party objects to your trade mark application (for example, during the opposition period).
• You’ve used your brand for some time, then discover someone else has registered a similar mark and you want to keep operating and/or secure your own registration.

It’s important to understand what honest concurrent use isn’t:

• It isn’t permission to ignore trade mark risks.
• It doesn’t automatically stop the other party from trying to enforce their rights (for example, by alleging trade mark infringement or passing off).
• It doesn’t guarantee you’ll get the registration you want (or in the exact scope you want).

But when the facts support it, honest concurrent use can be a powerful tool to help protect a startup that has built real goodwill and momentum under a name.

When Does Honest Concurrent Use Become Relevant For Startups?

Startups often run into trade mark conflicts because naming happens fast. You check a domain, you check social handles, you do a quick Google search, and then you launch.

The problem is that trade mark risk is not always obvious from a quick online search. Two names can look similar legally even if they “feel” different to founders. Or a business may be operating quietly under a similar name in a different state, niche, or channel.

Common Startup Scenarios

Honest concurrent use tends to come up for startups in practical, high-pressure moments, such as:

• You’re raising capital and an investor asks whether your brand is protected.
• You’re scaling nationally and suddenly your name collides with someone else outside your original market.
• You’re expanding products/services and your new offering overlaps with another business’s registered classes.
• You receive a “cease and desist” style letter alleging infringement and demanding you stop using your name.

If you’re dealing with a brand dispute, the strategy can matter just as much as the law. In some cases, sending a carefully drafted cease and desist letter (or responding properly to one) is part of the process of protecting your position and setting the tone for negotiations.

Why It’s Often About Evidence, Not Just Arguments

Honest concurrent use is usually evidence-heavy. It’s less about saying “we didn’t mean it” and more about demonstrating:

• when you started using the mark
• how you used it (on what products/services, in what channels)
• how big the use is (sales, customers, marketing reach)
• whether there’s been real confusion in the market
• whether you took reasonable steps when you became aware of the other party

In other words, it rewards businesses that can show a credible, good-faith story over time.

How Is Honest Concurrent Use Assessed (And What Evidence Helps)?

There isn’t a single checklist that guarantees success with honest concurrent use. Decision-makers typically look at the overall circumstances to decide whether it’s fair and practical for two similar marks to exist on the Register. Even with strong evidence, IP Australia (or a court) may still refuse registration if it considers consumer confusion is likely or coexistence isn’t appropriate in the circumstances.

That said, in most honest concurrent use matters, the strongest evidence tends to fall into a few key themes.

1. Length Of Use

Generally, the longer you’ve been using the mark (continuously and genuinely), the stronger your position may be.

Useful evidence includes:

• dated screenshots of websites and landing pages
• marketing collateral (digital ads, brochures, pitch decks, catalogues)
• invoices, purchase orders, and receipts
• business registration records

2. Geographic Scope Of Use

Where have you used the mark?

Even if you started locally, if your business is online you may have customers across Australia. Evidence of your customer locations, shipping logs, or service delivery footprint can be relevant.

3. Nature And Extent Of Use

It’s not just “we used it”. It’s also “how much did we use it”.

Useful evidence includes:

• sales figures and growth over time
• marketing spend
• website traffic and customer acquisition data
• media coverage, reviews, awards, or community recognition

4. Whether There Has Been Confusion

Because trade marks are about reducing confusion in the market, confusion evidence can cut both ways:

• If there’s been little or no confusion despite years of overlap, that may support coexistence.
• If there’s been significant confusion (misdirected emails, customers thinking you’re the other brand), that can be a risk factor.

Either way, you’ll want to document what’s happening in the real world, not rely on assumptions.

5. Good Faith (The “Honest” Part)

This is often the most sensitive issue for founders.

Honesty generally means you weren’t trying to benefit from another business’s reputation. Things that may help show good faith include:

• your explanation of how the name was developed (eg founder story, product meaning, internal naming documents)
• evidence that the branding was independently created
• steps you took when you became aware of the other mark (eg seeking advice, adjusting branding, narrowing your offering)

If your business is still early, getting your trade mark strategy right from the start can make a major difference later. That includes applying in the correct categories, which is where trade mark classes become crucial. Your chosen trade mark classes can affect whether you overlap with another business and how easy it is to argue coexistence.

Practical Steps If You’ve Discovered A Similar Trade Mark

If you’ve found a similar brand or trade mark, it’s normal to feel like you’re on the clock. You may have customers, contracts, ads running, and an app live in the market.

Before you panic (or send an angry email), it’s worth slowing down and taking a structured approach.

Step 1: Work Out What Actually Conflicts

Trade mark conflict isn’t just about whether names look similar. It also depends on things like:

• what goods/services each mark covers (including trade mark classes)
• how similar the branding is overall (word mark vs logo, stylisation, slogans)
• the audience and channels (B2B vs consumer, app store vs retail, etc.)
• how likely confusion is in practice

This is also where the “commercial reality” matters. Two startups might both use similar words, but operate in clearly different spaces. Or they might be on a collision course as they scale.

Step 2: Gather Your Evidence Early

If honest concurrent use might be relevant, start collecting evidence now, while it’s easy to access.

Create a folder with:

• your launch timeline and naming history
• website screenshots and dated marketing assets
• sales data and customer metrics
• examples showing how the mark appears on products, invoices, onboarding flows, packaging, etc.

Founders often assume they can “pull it together later”, but evidence is easier to validate (and more credible) when it’s assembled contemporaneously.

Step 3: Consider Whether Coexistence Is The Real Goal

Honest concurrent use is about coexistence, but that doesn’t always mean you want to operate in permanent overlap.

Ask yourself:

• Can you live with the risk of confusion as you scale?
• Will paid advertising and SEO make confusion worse over time?
• Are you planning to expand into areas the other party already covers?
• Would a small tweak now save you a rebrand later?

Sometimes a minor brand adjustment early is the cleanest commercial outcome, even if you could argue honest concurrent use. Other times, the brand equity you’ve built makes fighting for coexistence worthwhile.

Step 4: Think About Your Broader IP Foundation

Trade marks don’t exist in isolation. Your brand is often tied into:

• your domain name and social handles
• your product naming conventions
• design assets and creative work
• agreements with founders, employees, and contractors

If you’re growing a startup with co-founders or investors, it’s also worth ensuring ownership and decision-making are properly documented in a Shareholders Agreement. Brand disputes can create pressure on the business, and clear governance can help you respond faster and avoid internal conflict.

Alternatives To Honest Concurrent Use (And Why A Coexistence Agreement Can Help)

Sometimes honest concurrent use is the right legal pathway. But in many real-life startup disputes, the most effective solution is a negotiated one.

If both sides are operating honestly, a practical outcome may be to agree on boundaries so both brands can keep trading without stepping on each other’s toes.

Coexistence Agreements: The “Rules Of The Road”

A coexistence agreement (sometimes also called a trade mark coexistence deed) is a contract where both parties agree on how they will operate going forward.

This can cover things like:

• which party uses which version of the name (eg with an extra word or descriptor)
• different logos or brand presentation requirements
• geographic limits (eg one stays in Australia, another stays overseas, or different states)
• limits on goods/services (eg one uses the mark for software, another for consulting)
• how to handle customer confusion (eg referral arrangements)
• what happens if either party expands into the other’s space

Because this is a contract, you want it drafted carefully so it’s enforceable and reflects what you actually intend. It’s also worth understanding the basics of what makes a contract legally binding, because a poorly documented “handshake deal” can unravel quickly once money, growth, or a rebrand is involved.

Consent From The Earlier Trade Mark Owner

In some circumstances, the owner of the earlier mark may provide consent for your mark to register (often as part of an agreement). This can sometimes help address objections and reduce the risk of future disputes.

However, consent usually comes with conditions, and it’s important to check that those conditions won’t limit your growth strategy later.

Rebrand Or Brand Tweaks (Sometimes The Fastest Option)

We get it: founders hate the idea of changing a name.

But if you’re very early (few users, limited marketing), a small brand tweak can be a smart risk-management move. If you’re later-stage, even a partial tweak (like adding a distinctive prefix/suffix) may help reduce confusion while preserving your brand equity.

The key is making the decision intentionally, not reactively.

How To Reduce Trade Mark Risk Before It Becomes A Dispute

Even if you never need to rely on honest concurrent use, the best time to think about trade marks is before you’re forced to.

Here are practical steps that can help reduce trade mark risk while you’re naming, launching, and scaling.

Do A Proper Clearance Search (Not Just Google)

A quick online search is a start, but it won’t show you everything that matters legally.

At a minimum, you’ll want to look for:

• registered and pending marks that are identical or similar
• marks registered in overlapping classes
• business names and company names (not the same as trade marks, but still relevant)

This is especially important if you’re investing in branding, packaging, app store assets, and paid acquisition.

Register Early (And Register Strategically)

Registering a trade mark is one of the clearest ways to protect your brand as a business asset.

Startups often benefit from registering:

• the brand name (word mark)
• the logo (if it’s distinctive and you use it consistently)
• key product names (if they’re central to your offering)

When you’re ready to lock in protection, register your trade mark in a way that matches how you actually operate now and where you plan to grow next.

Protect Confidentiality During Naming And Brand Development

It’s common to workshop names with agencies, contractors, developers, or even potential partners.

If you’re sharing brand strategy, domain plans, or launch timelines, a Non-Disclosure Agreement can help protect confidential information and reduce the risk of disputes about who created what (or who saw what first).

Build Clean Ownership Over Brand Assets

If a contractor designed your logo, wrote your brand copy, or produced creative materials, make sure your business actually owns (or has the right to use) those assets. Trade mark registration is important, but you also want your underlying IP position to be clean.

And if you’re scaling with staff, contractors, and agency support, good documentation becomes part of your brand protection strategy.

Key Takeaways

• Honest concurrent use may allow similar trade marks to coexist in Australia, but it depends on your facts, your evidence, and a decision-maker’s discretion.
• Startups usually encounter honest concurrent use during trade mark objections, oppositions, or disputes where both parties have been using similar branding in good faith.
• Strong evidence often includes length and extent of use, geographic reach, sales/marketing data, and whether confusion has actually happened in the market.
• Coexistence can sometimes be resolved commercially through a well-drafted agreement that sets clear boundaries (often faster and more certain than a fight).
• You can reduce trade mark risk early by choosing the right trade mark classes, doing proper searches, and registering strategically as your business grows.
• If you’re unsure, getting advice early can save you from expensive rebrands, delayed launches, and avoidable disputes later.

This article provides general information only and does not constitute legal advice. If you’d like a consultation about honest concurrent use or protecting your startup’s trade marks, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.