Your Comprehensive Guide to Trademark Infringement

FAQS

What Is Trademark Infringement?

The definition of trademark infringement is any unlawful use of a registered trademark by an unapproved third party. More simply this means any business or individual utilising a known logo, phrase or name to sell their unrelated or unapproved goods and services. Trade mark infringement can happen with or without the intention to deceive consumers and trade mark infringement can happen when there is no intentional dishonesty. 

Some infringers copy trade marks in the hope that they can profit off the reputation of a known brand for their own financial gain.  

How Do You Avoid Trademark Infringement?

Occasionally, businesses or individuals can engage in infringing behaviour without realising it. The best way to do this is to perform proper checks for existing trademarks that are either identical or deceptively similar to the one you intend to use. 

By being proactive and ensuring your trademark is not already in use or that it is not too similar to one that exists you can avoid being accused of trademark infringement. 

Engaging in trademark infringement in Australia could see you fined up to $99,000 and/or spending up to five years in prison. 

Copyright Infringement Vs Trademark Infringement, What Is The Difference? 

Infringing behaviour tends to follow similar patterns whether this is a copyright infringement or trademark infringement. The main difference will depend on the rights copied and the particular action filed in the courts. This will impact the way in which these infringements are defended.

Copyright is assigned to artistic or literary endeavours and gives the copyright holder exclusive rights to print, publish, perform or record these works. 

Trademarks offer a similar exclusivity regarding the use of a specific logo, name or phrase that is associated with a business and its specific goods and services. 

Trademark infringements are typically easier to pursue, as trademarks can be formally registered and owned. There is currently no formal process for registering copyrights, however, they are also protected under Australian legislation. 

What Are Some Trademark Infringement Examples?

Examples of trade mark infringement include:

• The production of counterfeit handbags. This is a frequent infringement activity experienced by luxury designer brands such as Louis Vuitton, Versace and Gucci where their trade marked logos are used to sell fake copies. 
• When local Australian burger chain ‘down-n-out’ was established this was deemed as infringing on the reputation and brand recognition of US-based In-N-Out Burger.
• 3M, known for their adhesive tapes and protective coatings. Successfully defended themselves against infringement by a copycat calling themselves 3N - the names were judged as deceptively similar and confusing for consumers. 

What Is Trade Mark Enforcement?

Trademark enforcement is when a trademark owner seeks to enforce their rights to exclusively use their trademark. This is usually as a result of discovering that their trademark is being used without permission - signalling an infringement on their rights. 

To enforce these rights the owner of the trade mark may send a cease and desist letter, make a formal opposition to this use if the other party has applied for a similar trade mark and require alternative dispute resolution or in the worst-case scenario, pursue the infringer through the courts.

For more advice on trade mark infringement, contact IP Guardian's trade mark infringement attorneys today.

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Barry Meskin

Registered Patent and Trade Mark Attorney with significant experience obtaining all forms of registered intellectual property. I hold a Bachelor of Science in Engineering, a Masters of Business Administration and a Masters of Intellectual Property. I’m passionate about showing my clients how they can protect their brands through trademark registrations.