It is much easier to stop someone using your trade mark if has been registered at the Trade Marks Office. This is because having a Trade Mark Registration Certificates proves you are the absolute owner of the trade mark – End of Story!

If someone else is using your registered trade mark then you are entitled to sue for infringement of your trade mark. You can demand that they stop using your registered trade mark. You can only sue for trade mark infringement if you have a registered trade mark.

If you have not registered your trade mark it is a bit harder to stop someone else using your trade mark and you have to rely on your prior use and reputation in the trade mark. The Trade Practices Act prohibits misleading and deceptive conduct in trade. If another business is using your unregistered trade mark and you can show that customers are likely are being misled or deceived then you can sue under this Act.

Also the Courts in Australia can prevent someone using your unregistered trade mark if that business or person is "Passing Off" as you or your business by using your trade mark or similar get-up.

To prove 'Passing Off' you must show that you have an exclusive reputation in the trade mark; that customers are or may be being deceived or misled by the actions of the other business and; that damage to your reputation is likely because of the misrepresentation.

If someone disputes the ownership to a trade mark then it comes down to who first used the trade mark or who registered the trade mark – whichever is earlier is given priority to the trade mark.

We recommend that before a trade mark is finally selected for a new product or service that the proper checks are made to check the availability and registrability of the trade mark.

You may be surprised to learn that someone else has secured the trade mark registration before you. This will prevent you spending large amounts on the branding of the trade mark or even a large scale product launch or investment only to find that the mark is not available and you may even be infringing someone else's trade mark.

You should apply to trade mark the new brand as soon as possible to secure the priority in the trade mark.