It is not unlawful to register a trade mark which has been used by someone else overseas – provided the trade mark has not been used at all in Australia at the date of the trade mark application. But if the trade mark has become known in Australia either because the goods have been bought into Australia or by some other means such as through promotional material or the internet, then it is unlikely that you could obtain a valid trade mark registration.

The Court does not look too kindly on those that try and take advantage of a reputation in a trade mark that is owned by someone else even if the owner is overseas or even if the mark has only been used overseas and not Australia. The Courts will therefore look to a very small amount of use or reputation in the trade mark here to stop someone appropriating the mark here Australia.