Skip to content

My Trade Mark Rights Have Been Infringed. What Should I Do?

In Short

  • Confirm Your Rights – Ensure your trade mark is registered, covers the relevant goods or services, and has been actively used.
  • Gather Evidence – Collect proof of the infringement, such as screenshots, photos, and marketing materials, to support your case.
  • Take Action Quickly – Seek legal advice, consider sending a cease and desist letter, and implement a monitoring strategy to prevent future infringements.

Tips for Businesses
If someone is using your trade mark without permission, act quickly to protect your brand. Confirm your rights, collect evidence, and assess the potential impact. A well-drafted cease and desist letter can often resolve the issue without court action. Ongoing monitoring helps catch future infringements early, saving time and legal costs.


Table of Contents

Discovering that someone has infringed your trade mark rights can be distressing and potentially damaging to your business. Your trade mark is a valuable asset distinguishing your goods or services from your competitors. When another party uses your trade mark without permission, it can lead to consumer confusion and dilution of your brand. This article outlines the steps you should take if you believe someone has infringed your trade mark rights in Australia.

Front page of publication
Trade Mark Essentials

This guide explains the essentials of trade marks and the steps required to register a trade mark.

Download Now

Confirm Your Trade Mark Rights

Before taking action, ensure you have valid and enforceable trade mark rights. You should:

  1. check that your trade mark is currently registered with IP Australia;
  2. verify that your registration covers the goods or services related to the alleged infringement; and
  3. confirm that you have been using your trade mark consistently to maintain your rights.

Gather Evidence of Infringement

Once you have confirmed your trade mark rights, you should collect comprehensive evidence of the alleged infringement. This may include:

  • screenshots of websites or social media posts showing the infringing use;
  • photographs of products or packaging bearing the infringing mark;
  • copies of advertisements or marketing materials bearing the infringing mark;
  • receipts or invoices from purchases of infringing goods or services; and
  • any correspondence with the alleged infringer.

Document the dates and locations where you have observed the infringement. This evidence will be crucial if you need to take legal action.

Continue reading this article below the form
Loading form

Assess the Nature and Extent of the Infringement

Once you have collected evidence of the alleged infringement, you should consider the nature and extent of the infringement. Ask yourself: 

  • is the infringing mark identical or similar to yours;
  • are the goods or services related to the infringement identical or similar to those covered by your registration;
  • is there a likelihood of consumer confusion;
  • how long has the infringement been occurring; and
  • what is the potential impact on your business?

The answers will help determine the urgency and appropriate course of action.

Trade mark infringement cases can be complex, and the appropriate course of action depends on your circumstances. We recommend consulting with an experienced intellectual property lawyer who can:

  • assess the strength of your case;
  • advise on the best strategy for your situation;
  • draft cease and desist letters or other legal documents; and
  • represent you in negotiations or court proceedings if necessary.

While it is essential to consider your options carefully, do not delay addressing the infringement. Failing to enforce your rights promptly could weaken your position if you need to take legal action later.

Monitor for Future Infringements

After addressing the current infringement, consider implementing a strategy to monitor for future potential infringements. This may include:

  • regular online searches for your trade marks;
  • setting up Google Alerts for your brand and product name;
  • monitoring trade mark applications through IP Australia; and
  • professional brand protection services.

Key Takeaways

Addressing trade mark infringement promptly and effectively is crucial for protecting your brand. If you identify trade mark infringement, you should confirm your trade mark rights, gather evidence of the mark infringed, and consider your options carefully. Consider seeking professional legal advice to guide your strategy and ensure the best outcome for your business.

If you have any questions about maintaining your trade mark registration, our experienced IP lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page

Frequently Asked Questions

How long do I have to take action against a trade mark infringer?

While there is no strict time limit, it is best to act promptly if your trade mark has been infringed. Delaying action could weaken your case.

Can I take action against someone using my trade mark overseas?

Trade mark rights are generally on a country-by-country basis. Your Australian trade mark registration only provides protection within Australia.

If you have registered your trade mark in other countries or through international systems like the Madrid Protocol, you can take action in those jurisdictions.

Register for our free webinars

ACCC Merger Reforms: Key Takeaways for Executives and Legal Counsel

Online
Understand how the ACCC’s merger reforms impact your legal strategy. Register for our free webinar.
Register Now

Ask an Employment Lawyer: Contracts, Performance and Navigating Dismissals

Online
Ask an employment lawyer your contract, performance and dismissal questions in our free webinar. Register today.
Register Now

Stop Chasing Unpaid Invoices: Payment Terms That Actually Work

Online
Stop chasing late payments with stronger terms and protections. Register for our free webinar.
Register Now

Managing Psychosocial Risks: Employer and Legal Counsel Responsibilities

Online
Protect your business by managing workplace psychosocial risks. Register for our free webinar.
Register Now
See more webinars >
Kate Young

Kate Young

Lawyer | View profile

Kate is a Lawyer in LegalVision’s Intellectual Property team, specialising in trade marks.

Qualifications:  Bachelor of Laws, Graduate Diploma of Legal Practice, Bachelor of Economics and Finance, University of Wollongong.

Read all articles by Kate

About LegalVision

LegalVision is an innovative commercial law firm that provides businesses with affordable, unlimited and ongoing legal assistance through our membership. We operate in Australia, the United Kingdom and New Zealand.

Learn more

We’re an award-winning law firm

  • Award

    2025 Future of Legal Services Innovation Finalist - Legal Innovation Awards

  • Award

    2025 Employer of Choice - Australasian Lawyer

  • Award

    2024 Law Company of the Year Finalist - The Lawyer Awards

  • Award

    2024 Law Firm of the Year Finalist - Modern Law Private Client Awards

  • Award

    2022 Law Firm of the Year - Australasian Law Awards