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No matter what kind of business you’re in, understanding intellectual property is one of the most important steps in establishing your brand.
When you think of McDonald’s, Weet-Bix, Disney or Qantas, you should have a very clear idea of what that brand is all about. They all have their own distinct story and character. Building such a brand takes time and effort, so it’s crucial to protect your creative ideas from being exploited by others.
Trade marks are a key aspect of intellectual property – they differentiate your product or service from others and serve as the face of your brand. A trade mark might take the form of a logo, slogan, or even a scent. The essential point is that you own it, so you wouldn’t want anyone else appropriating your brand identity. For a clearer understanding of how trade marks differ from copyright, read our guide on trade mark vs copyright.
This article will discuss the implications of trade mark infringement and how you can protect your brand in today’s competitive 2025 marketplace.
What Is A Trade Mark Infringement?
A trade mark infringement occurs when another business uses an existing trade mark without permission. As you might already know, businesses must register their trade mark with a government body such as IP Australia to secure their rights.
If your trade mark is registered, others are legally barred from using it. Should someone use it without permission, you’ll need to consider your options for making a claim.
How Do I Know If Someone Has Infringed My Trademark?
If you suspect that someone is infringing your trade mark, your first step should be to consult the Trade Marks Act 1995 (Cth). More specifically, section 120 of the Act outlines the criteria for determining infringement. In 2025, these guidelines remain a cornerstone in assessing whether your protected brand is being misused.
Generally speaking, a person may be deemed to infringe a trade mark if:
- The trade mark is well known in Australia
- The person uses a sign that is substantially identical to, or deceptively similar to, the registered trade mark
- The goods or services offered are closely connected to those covered by the registered trade mark
Let’s delve deeper into these circumstances.
Trade mark is ‘well known’
Even if the infringing trade mark bears only a weak connection to the original, it can still be deemed infringement if the original trade mark is recognised as ‘well known’. Essentially, even a different product being marketed under a similar name might evoke the registered trade mark in consumers’ minds, thereby causing confusion.
Ultimately, whether a brand is considered well known is determined by the Court.
Trade mark is substantially identical with, or deceptively similar to, the registered trade mark
When evaluating whether two trade marks are ‘deceptively similar’, you must consider the overall visual impression, including aspects such as sound and meaning. Ask yourself:
- What similarities and differences are present?
- Do they provide the same initial impression?
- Which features stand out prominently in each?
If uncertainty remains, section 10 of the Trade Marks Act defines ‘deceptively similar’ as a resemblance so close that “it is likely to deceive or cause confusion.” To illustrate, consider the following example.
| Example: Clothing The Gap vs Gap Although the dispute originally arose in 2021, its implications remain highly relevant in 2025. The small business Clothing The Gap eventually rebranded to ‘Clothing The Gaps’ after receiving a cease-and-desist letter from the US company, The Gap. Despite not originally intending any association with The Gap Inc, the shared word in their names led to concerns over potential trademark infringement. Co-founder Laura Thompson chose to preempt further legal complications by shifting focus to marketing campaigns that better reflected their unique market positioning. |
Goods or Services Are Closely Connected
If the products or services offered by the alleged infringer closely resemble those associated with the original trade mark, this may also constitute infringement. It’s important to note that the similarity need not be exact; the key factor is whether there is any likelihood of confusion among consumers.
How Common Are They?
While encountering trade mark disputes is relatively common, actual legal proceedings remain infrequent because many cases are resolved early through negotiation or mediation. For additional guidance on resolving disputes, our Negotiation Support services can be invaluable.
In 2025, with the ever-increasing number of similar trade marks being registered, vigilance in protecting your brand is more critical than ever. The broad interpretation of infringement criteria can sometimes lead to disputes, so a proactive approach involving regular assessments and professional advice is essential. For further insight, read our guide on choosing a small business lawyer.
My Trade Mark Is Being Infringed – What Now?
Unfortunately, in today’s competitive market, attempts to misuse or appropriate your creative ideas are not uncommon. It’s crucial to monitor your trade mark closely and take prompt action if infringement is suspected.
So, let’s say someone has attempted to register a trade mark identical to yours. What are your next steps?
The very first step is to seek professional advice – from a lawyer, of course. Minimising delays is essential not only for safeguarding your brand but also for strengthening your position in any subsequent financial compensation claims. For further assistance, consider reading our guide on choosing a small business lawyer to ensure you’re in the right hands.
Once you’ve consulted with a lawyer, you will likely be advised to send a Letter of Demand to the party allegedly infringing your trade mark. This letter should outline:
- Your rights in relation to your trade mark
- Specific details of how the alleged infringement occurred
- The corrective steps the infringer should take (for example, changing their business name)
- The subsequent actions you will pursue if the infringement continues, such as commencing Alternative Dispute Resolution (ADR) or pursuing legal proceedings
The Letter of Demand is a critical document as it clearly sets out your position and the available options for the other party. Should they fail to respond appropriately, you may need to escalate the matter through mediation—and if necessary, take the dispute to court.
Make Sure You Have Legal Grounds
It’s common for business owners to become emotionally attached to their brand, sometimes clouding judgments about the legality of their claims. Before proceeding with any legal action, ensure you have a solid legal foundation for your claim. Remember, if your claim is groundless, the other party may have grounds to sue you for making unsubstantiated legal threats.
Therefore, it is advisable to review section 120 of the Trade Marks Act and consult with a lawyer to confirm that you have a valid basis for your claim.
What If I Infringed Someone Else’s Trademark?
Even if you believe your trade mark is unique, similarities to an existing trade mark can sometimes lead to allegations of infringement. This is particularly relevant for businesses using catchy slogans—before you start using one, it’s worth learning how to protect your slogan or tagline to avoid legal risks.
If you receive a Letter of Demand alleging trade mark infringement, it’s vital to consult with a lawyer immediately before agreeing to any terms. Protecting your business means ensuring that any response is based on sound legal advice.
Ultimately, safeguarding your business also involves defending it against groundless infringement claims while maintaining a reputable brand image.
What Are The Penalties For Trademark Infringement?
Although it’s best to avoid courtroom battles, if a dispute escalates to legal proceedings in 2025, the court may grant relief under section 126 of the Trade Marks Act. Such relief is intended to prevent further misuse of your trade mark.
So, what penalties might be imposed?
Injunction
An injunction is a court order requiring the infringer to immediately cease using the trade mark or any sign that is confusingly similar. In addition, the court may impose further conditions to ensure lasting compliance.
Damages
The court may award either damages or an account of profits, meaning you could receive financial compensation for losses incurred or be awarded the profits generated by the infringer’s breach. In some cases, punitive damages might also be granted to deter future infringements.
However, these remedies may not be available if:
- The infringer has successfully applied for removal of their trade mark from the register
- The court determines that the trade mark was not used in good faith by the infringer
Additional damages may be awarded based on factors such as the infringer’s conduct, the financial benefit gained from the breach, and the need to deter future violations. Each case is unique, so these guidelines serve only as a general framework.
Next Steps
All business owners should be proactive in protecting their trade marks and remain vigilant about potential infringements. Whether you’re defending your intellectual property or addressing allegations of infringement, staying informed and seeking professional guidance is essential. For further insights, you might also find our Legal Requirements for Starting a Business guide helpful.
As we progress through 2025, the landscape of trademark law continues to evolve. Regularly reviewing your IP portfolio is now more important than ever to ensure ongoing protection in a competitive, global market. Consider scheduling an IP health check with our team—our trade mark consultation services provide the up-to-date guidance you need to stay ahead.
Need help applying for a trade mark? Sprintlaw’s experienced team of lawyers is here to support you. Reach out to us at team@sprintlaw.com.au or call 1800 730 617 for an obligation-free chat about protecting your brand in 2025.
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