- Blog
- June 10, 2026
You’ve spent years building your brand. The name, the logo, the reputation — it’s yours. Then one morning you discover that another business is using something uncomfortably similar. Maybe a customer sent you a link. Maybe you found them while searching for yourself online. Maybe a friend said, “Hey, did you know there’s another company using basically the same name as you?”
That sinking feeling? It’s real. And it’s the moment when the value of IP protection becomes viscerally obvious.
Here’s what you need to know, and what you should actually do.
First: Do You Have a Registered Trade Mark?
This is the question that determines almost everything about your options.
If you have a registered trade mark with IP Australia, you’re in a strong position. The Trade Marks Act 1995 (Cth) gives you the exclusive right to use that mark for the goods and services it’s registered for, and a clear legal pathway to stop others from using something substantially identical or deceptively similar.
If you don’t have a registration, your options narrow considerably. You may be able to rely on common law “passing off” or misleading and deceptive conduct provisions under the Australian Consumer Law — but both require proving that you have an established reputation in the mark and that the other party’s conduct is likely to cause confusion. That’s harder, slower, and more expensive than enforcing a registered trade mark.
This is why we keep emphasising trade mark registration. It’s not just a piece of paper. It’s the foundation of your ability to defend your brand when it matters most. If you haven’t registered yet, our post on trade mark registration costs explains the process and investment involved.
What Counts as Trade Mark Infringement?
Under Australian law, someone infringes your registered trade mark if they use a sign that is:
- Substantially identical or deceptively similar to your registered mark, AND
- Used in connection with goods or services that are the same as, or similar to, those covered by your registration, AND
- Used “as a trade mark” — meaning as a badge of origin, to identify their goods or services.
The test isn’t whether the marks are literally identical. It’s whether an ordinary consumer might be confused about whether the goods or services come from the same source. Slight variations in spelling, added words, or colour changes don’t necessarily prevent infringement.
For well-known trade marks, the protection is even broader — infringement can occur even when the infringing mark is used for completely different goods or services, if it damages the reputation of the well-known mark.
What to Do: A Step-by-Step Approach
Step 1: Don’t panic, and don’t fire off an angry email
We understand the urge. But a poorly worded message can undermine your position and even expose you to liability. Take a breath. Gather your thoughts. Then take the next step.
Step 2: Document everything
Before you do anything else, collect and preserve evidence of the infringement. Screenshots of their website, social media, product packaging, marketing materials — anything showing how they’re using the mark. Note dates. If possible, purchase a sample of their product so you have physical evidence. This documentation will be important regardless of how the matter proceeds.
Step 3: Get professional advice
This is where a trade mark attorney earns their fee. We’ll assess whether what’s happening actually constitutes infringement (not every similarity does), review the strength of your registration, and advise on the best course of action given your specific circumstances.
Sometimes the assessment reveals that the situation isn’t as clear-cut as it first appeared. Other times it confirms that you have a strong case. Either way, knowing where you stand before taking action is essential.
Step 4: Consider a cease and desist letter
In most cases, the first formal step is a carefully drafted letter to the infringing party. A good cease and desist letter does several things: it puts them on notice of your rights, clearly identifies the infringing conduct, and requests that they stop. It also creates a paper trail that becomes important if the matter escalates.
Many infringement situations are resolved at this stage. Often the other party wasn’t even aware of your trade mark and is willing to rebrand or change their approach once the issue is pointed out. Not every infringer is acting in bad faith.
Step 5: Negotiate, escalate, or both
If a cease and desist letter doesn’t resolve the issue, there are further options: negotiation (perhaps a coexistence agreement if the marks can operate in different spaces), formal opposition proceedings if they’ve applied for a conflicting trade mark, or ultimately, Federal Court proceedings. Each step involves more cost and more time, which is why resolving matters early is almost always preferable.
At Ascot Martin, we can manage any of these stages on your behalf and advise on the most commercially sensible approach at each point. Litigation is sometimes necessary, but it’s rarely the first option.
What If Someone Accuses You of Infringement?
It goes both ways. You might receive a cease and desist letter claiming that your brand infringes someone else’s trade mark. Don’t ignore it — but don’t panic either.
Get professional advice immediately. The claim might be valid, in which case you need to understand your options (which may include licensing, rebranding, or challenging the other party’s mark). Or the claim might be weak or even baseless. A well-prepared response from a trade mark attorney can often defuse the situation.
The worst thing you can do is ignore a letter from another party’s lawyers. Silence can be interpreted as admission, and it removes your opportunity to shape the outcome.
Prevention Is Always Cheaper Than Cure
Most trade mark infringement disputes could have been avoided with earlier action. Here’s what proactive brand protection looks like:
- Register your trade mark before you launch. This is the single most important step. Our post on why a business name registration is not a trade mark explains why ASIC registration isn’t enough.
- Cover the right classes. Make sure your trade mark registration covers all the goods and services you actually provide (or plan to provide). Gaps in coverage create gaps in protection.
- Monitor the market. Periodically check whether anyone is using a mark similar to yours. IP Australia publishes new trade mark applications in the Australian Official Journal of Trade Marks — keeping an eye on new filings can catch potential conflicts early.
- Act promptly. If you discover infringement, don’t sit on it. Delay can weaken your position and may even be used against you in any subsequent legal proceedings.
Frequently Asked Questions
How much does it cost to enforce a trade mark?
It depends entirely on how far the matter goes. A cease and desist letter might cost a few hundred to a couple of thousand dollars (including the legal assessment). Opposition proceedings are more involved. Federal Court litigation can cost tens of thousands or more. Most disputes, however, are resolved well before litigation.
Can I stop someone using a similar name if I don’t have a registered trade mark?
Possibly, but it’s significantly harder. You’d need to rely on passing off or the Australian Consumer Law, both of which require proving an established reputation and likely consumer confusion. A registered trade mark simplifies enforcement dramatically.
What if the infringer is overseas?
Australian trade mark registrations only protect you in Australia. If someone is infringing from overseas and their products or services reach Australian consumers, you may still have grounds to act under Australian law. For broader international protection, trade mark registrations in other jurisdictions are necessary. We work with a global network of attorneys to coordinate international enforcement.
How long does a trade mark dispute typically take to resolve?
A cease and desist letter can be sent within days of engaging us. If the other party cooperates, the matter might be resolved within weeks. If formal proceedings are necessary, the timeline extends to months or potentially longer.