Trademark Infringements

Someone's Copying Your Brand. Here's How to Stop Them.

You've built your brand. You've invested in marketing. You've earned customer trust and recognition.

And now someone else is using your name, your logo, or something confusingly similar—riding on your reputation, confusing your customers, and stealing your sales.

If you have a registered trademark, you have legal power to stop them.

If you don't, you're fighting an uphill battle with limited options.

This is why trademark registration matters. And this is where Emma steps in to enforce your rights.

What Is Trademark Infringement?

Trademark infringement occurs when someone uses a mark that is identical or confusingly similar to your registered trademark in relation to the same or similar goods/services.

Common infringement scenarios:

Direct copying

• Using your exact brand name or logo
• Selling the same products/services under your mark
• Passing off their business as yours

Confusingly similar use

• Using a name that sounds like yours (phonetic similarity)
• Using a logo that looks like yours (visual similarity)
• Using branding that creates consumer confusion

Marketplace infringement

• Selling counterfeit products under your brand on eBay, Amazon, and Facebook Marketplace
• Unauthorised resellers misrepresenting themselves as official distributors
• Dropshippers using your brand without permission

Online infringement

• Registering domain names with your trademark
• Using your brand name in Google Ads or social media
• Creating fake social media accounts using your branding

Geographic expansion conflicts

• Competitors in other states/territories using your brand
• International companies entering Australia with your mark

The Difference Between Having a Trademark and Not.

WITH a registered trademark:

✅ Legal presumption of ownership – You don't have to prove you own the mark; they have to prove you don't (rarely happens)

✅ Nationwide exclusive rights – Even in areas you haven't traded yet

✅ Multiple enforcement tools:

• Cease and desist letters (usually work immediately)
• Court injunctions (stop them fast)
• Damages or account of their profits
• Destruction of infringing goods
• Customs seizures at the border

✅ Lower enforcement costs – $15,000-$50,000 for straightforward cases

✅ High success rate – 80%+ when you have a registered mark

✅ Criminal penalties available for serious counterfeiting

WITHOUT a registered trademark (relying on "passing off"):

❌ You must prove:

• You have a reputation/goodwill in the geographic area
• Their use causes confusion/deception
• You've suffered or will suffer damage

❌ Geographic limits – Only protected where you've actually built a reputation

❌ Much harder to prove – Subjective, evidence-heavy, expensive

❌ Cease and desist often ignored – Infringer knows it's expensive and uncertain for you

❌ Higher enforcement costs – $50,000-$150,000+ easily

❌ Lower success rate – Maybe 40-60%, highly dependent on evidence

❌ No border protection – Can't stop imports

❌ No criminal remedies

The bottom line: A registered trademark gives you teeth. Without it, you're mostly bluffing.

Howto Handle a Trademark Infringement

With over 20+ years of experience fighting infringement across fashion, FMCG, tech, and other industries where copying is rampant, we know what works and what doesn't.

Here's the process:

Step 1: Assessment & Evidence Gathering

Emma reviews:

• Your registered trademark (or common law rights if unregistered)
• The infringing use (screenshots, products, marketing materials, URLs)
• The infringer's business (who they are, where they operate, how long they've been using the mark)
• The likelihood of confusion (are consumers actually being confused?)
• The commercial impact (are you losing sales, suffering brand damage?)

You'll get a clear assessment:

• Strength of your case (strong, moderate, weak)
• Recommended approach (cease and desist, negotiation, litigation, other)
• Likely outcome (will they stop, will they fight, will they ignore)
• Cost vs. benefit (is enforcement worth it, or is there a better strategic approach?)

Step 2: Cease and Desist Letter

In most cases, Emma starts with a professionally drafted cease and desist letter.

What it includes:

• Identification of your registered trademark and rights
• Evidence of the infringement (specific examples)
• Legal basis for your claim (Trade Marks Act provisions)
• Demand to cease use immediately
• Deadline for compliance (typically 7-14 days)
• Consequences of non-compliance (legal action, damages, costs)

Why it works:

When an infringer receives a letter from a Registered Trademark Attorney citing a registered trademark, they know:

• You have legal standing
• You have the resources to follow through
• Fighting will cost them more than complying
• They're legally in the wrong

70-80% of infringers stop immediately after receiving a properly drafted cease and desist letter.

Step 3: Negotiation & Settlement (If Needed)

If the infringer responds but doesn't immediately comply, here are the possibilities:

Common negotiated outcomes:

• Phase-out agreement – They stop using the mark within a set timeframe (e.g., 90 days to sell existing inventory)
• Geographic or product limitations – They can use the mark in limited circumstances that don't conflict with you
• Licensing agreement – They pay you to use the mark under controlled conditions
• Consent agreement – Both parties agree on specific terms of coexistence
• Financial settlement – They pay damages for past infringement and agree to stop

Emma's goal: Get the infringement stopped with minimal cost and maximum protection for your brand.

Step 4: Escalation to Litigation (If Necessary)

If the infringer ignores the cease and desist or refuses to negotiate reasonably, Emma escalates:

Marketplace takedowns:

• eBay, Amazon, and Facebook Marketplace all have trademark infringement reporting processes
• With a registered trademark, Emma can get listings removed quickly
• Repeat infringers can be banned from platforms

Domain disputes:

• If they've registered a domain with your trademark, Emma can file a complaint under the .au Dispute Resolution Policy (auDRP)
• Faster and cheaper than court
• High success rate for clear trademark infringement

Customs seizures:

• If counterfeit goods are being imported, Emma can register your trademark with the Australian Border Force
• Infringing goods are seized at the border before they reach the market

Court action:

• Federal Court injunctions to stop the infringement immediately
• Claims for damages or account of profits
• Orders for the destruction of infringing goods
• Cost orders (they pay your legal fees if you win)

The Cost of NOT Enforcing Your Trademark

If you don't act when someone infringes:

❌ You lose sales – Customers buy from the infringer, thinking it's you, or get confused and buy from neither

❌ You damage your brand – If the infringer's quality is poor, your reputation suffers

❌ You weaken your trademark – Failure to enforce can be used against you in future disputes ("you didn't care before, why now?")

❌ You encourage more infringement – Other copycats see no consequences and pile on

❌ You lose legal standing – Courts look unfavourably on trademark owners who tolerate infringement for years, then suddenly sue

If you enforce quickly and decisively:

✅ You stop the bleeding – Infringement ends before significant damage occurs

✅ You send a message – Other potential infringers see you protect your brand

✅ You maintain brand integrity – Customers know the real brand from the fakes

✅ You preserve your legal rights – Courts respect trademark owners who actively protect their marks

But I Don't Have a Registered Trademark—Can You Still Help?

Yes, but your options are much more limited and expensive.

Without a registered trademark, you're relying on "passing off" claims under common law.

Emma can still help, but:

• Higher cost – More evidence required, more complex legal arguments
• Lower success rate – Harder to prove, easier for infringer to fight
• Geographic limits – Only protected where you've built a reputation
• Longer timeline – Can't use fast-track trademark enforcement mechanisms

The honest answer: If you're serious about stopping infringement, get your trademark registered first.

Then enforce it.

LEARN ABOUT TRADEMARK FILING

How to Get Started

If someone is infringing your trademark, here's what to do:

1. Gather evidence:
• Screenshots of their website, social media, and listings
• Photos of infringing products
• Evidence of customer confusion (if any)
• Dates and details of when you first noticed the infringement
2. Contact Emma immediately:

📧 Contact Us
📞 +61 405 113 332

Have ready:

• Your registered trademark details (or evidence of use if unregistered)
• Evidence of the infringement
• Any prior communication with the infringer
• Your goals (stop them completely, negotiate coexistence, recover damages, etc.)

Prevention Is Cheaper Than Enforcement

The best way to handle trademark infringement is to prevent it in the first place.

How?

1. Register your trademark – Gives you legal teeth and deters infringers

LEARN ABOUT FILING

2. Monitor for infringement – Catch copycats early when they're easy to stop

3. Enforce consistently – Show the market you protect your brand

When infringers know you have a registered trademark and actively enforce it, most won't even try.

Common Questions

How do I know if something is actually an infringement?

Emma assesses this during the initial review. The test is whether the use is likely to cause consumer confusion—not whether it's identical. Even similar names, logos, or branding can be infringement if consumers might be confused.

What if the infringer is overseas?

If they're selling into Australia, Emma can still take action (marketplace takedowns, customs seizures, targeting Australian distribution). If they're purely overseas with no Australian presence, enforcement is much harder and may not be cost-effective.

Can I send a cease and desist myself?

You can, but it's often ineffective. Infringers ignore letters from business owners because they know most won't follow through. A letter from a Registered Trademark Attorney carries legal weight and credibility.

What if I can't afford court action?

Most infringement cases don't go to court. Emma uses cost-effective enforcement mechanisms (cease and desist, marketplace takedowns, negotiation) that resolve 80%+ of cases without litigation.

What if the infringer claims they didn't know about my trademark?

Doesn't matter. Trademark infringement doesn't require intent. If they're using a confusingly similar mark, they need to stop—whether they knew about your trademark or not.

How long does enforcement take?

• Cease and desist response: 7-14 days typically
• Marketplace takedowns: 24-48 hours
• Domain disputes: 60-90 days
• Court action: 6-18 months

The sooner you act, the faster it resolves.

Protect Your Brand from the Start

Don't wait until infringement happens. Register your trademark now:

(Credits fully toward Comprehensive Search if you upgrade)

Not sure if you need the Audit or the Search?

Book a free 30-minute consult with Emma to discuss your situation