Trade Marks

Trade Mark Infringement Attorneys

Highly skilled trade mark attorneys, providing personalised, commercially oriented services related to trade mark registrations, securement and defence.

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What Is Trade Mark Infringement?

Trade mark infringement refers to any unauthorised use of an existing trade mark registration by a third party. This may occur in error or be a direct result of the infringer seeking to gain financial advantage by leveraging the valuable reputation of the trade mark.

Criminal trade mark infringement occurs not only when direct copies of a trade mark are used but also when a trade mark that is deceptively similar to the registered trade mark are used.

Trade mark infringement examples also include any instances where the logo, phrase or image in question is deceptively similar or substantially the same.

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Trade Mark Infringement – Where You Stand

Behaviour involving the infringement of a trade mark is not monitored by any formal government body. It is the responsibility of the trade mark owner to monitor for these instances and enforce their rights when necessary.

Trade mark infringement in Australia may be asserted whether you have legally registered your trade mark or not, however certain actions may only apply in certain circumstances that depend on the specific facts of the alleged infringement.

While it is much easier to defend your rights when your trade mark is registered, you are still afforded a level of protection under a common law in either situation.

Whether you have discovered that your rights have been infringed upon, or have been accused of infringing behaviour yourself it is important not to panic. There are several steps you can take to resolve the issue and intensive legal action is not always necessary.

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Can I Navigate Trade Mark Infringement Independently?

While it is possible to manage the discovery of infringing behaviour or accusations of it by yourself, it is generally not recommended.

Understanding your rights and how to communicate these effectively from a legal standpoint can be quite challenging. Just knowing which steps to take initially or how to best bring about a desired resolution can be difficult.

This confusion could lead to a lot of time-consuming effort on your behalf, a continuation of the behaviour in contradiction to your rights and potentially become much more expensive to resolve. You may also make admissions or statements that undermine your position or even make your position worse.

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How A Trade Mark Infringement Attorney Can Help

The best way to approach trade mark infringement cases in Australia or overseas is with the support of a qualified trade mark attorney.

Highly skilled in trade mark law, a trade mark attorney is best positioned to review the situation at hand and advise on the next steps.

Often, a properly drafted cease and desist letter from a registered attorney is enough to stop the behaviour in question without the need for costly litigation.

Should litigation be necessary, ensuring you are well-prepared, properly informed and represented by an expert is essential. Without this, defending your rights and achieving the desired outcome is much less likely.

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IP Guardian - Expert Trade Mark Attorneys

Backed by decades of combined experience and skill, the team at IP Guardian are deeply knowledgeable in all facets of trade mark law.

Delivering unmatched service and advice, we guarantee a robust defence against trade mark infringement or allegations of it. Whether this is over the internet, via social accounts such as Instagram, or witnessed in print or products, we’re here to help.

Your case will be carefully reviewed, all evidence gathered and the most effective action taken as quickly as possible. To support against future infringement, we can also process registrations of trade marks as needed in accordance with our suggested resolution strategy.

Dedicated and professional, our approach is representative of our integrity and commitment to delivering affordable and accessible legal advice to all Australian business owners. Never compromising on quality or outcomes, we’re the team you can trust to guide you through trade mark infringement with ease.

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Frequently Asked Questions

"IP Guardian helped me to protect my idea before I disclosed it to third parties, ensuring it was secure from copying."

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.
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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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