A competitor is using your brand. Your registered trade mark, your distinctive get-up, your slogan, or a name confusingly similar to yours. They turned up in your customers’ search results. Their landing page borrows your tone. Your customers have started asking whether you are connected. Every day they trade on your reputation, your brand equity erodes.
Australian trade mark law gives you strong, fast remedies — but you need to act. A Cease and Desist letter is the standard first step, both because it often resolves the matter without litigation, and because it preserves and quantifies your damages claim if it does not.
The legal context
Under the Trade Marks Act 1995 (Cth), a registered trade mark gives you the exclusive right to use that mark in respect of the goods or services in your registration. Use of the same or a deceptively similar mark by another trader, in the same or related categories, is infringement under section 120. Beyond statute, the Australian Consumer Law’s misleading or deceptive conduct provisions (sections 18 and 29) and the common-law tort of passing off provide additional bases that often bite even where trade mark registration is not in place.
Common pushbacks and why they fail
- “Our mark is different enough.” The test is deceptive similarity — risk of confusion to ordinary consumers, not side-by-side comparison by a lawyer.
- “We are in a different category.” Related goods and services count, and the ACL and passing-off claims do not require category identity.
- “You did not register first.” Even unregistered marks attract passing-off and ACL protection where reputation is established.
- “It is just descriptive.” Descriptive use is sometimes a defence, but it is narrow and rarely covers commercial branding.
The document and what it does
A Cease and Desist letter identifies your registered trade mark or established brand, the infringing use, the legal bases (Trade Marks Act, ACL, passing off), and demands that the competitor cease use, undertake not to resume, deliver up infringing materials, and account for profits or pay damages. It sets a deadline and signals Federal Court proceedings to follow.
What Claim Done delivers
- The registered or unregistered mark and the infringing use documented
- Citation of Trade Marks Act, ACL and passing-off bases
- Demand for cessation, undertakings, and damages or account of profits
- Clear deadline and escalation path to the Federal Court
- Drafted and sent on letterhead, flat $79
What to expect after
Most infringers fold inside the deadline because Federal Court trade mark litigation is expensive, public and slow for the defendant. Expect either a written undertaking and rebrand timeline, or a settlement offer including damages. If neither arrives, escalation to formal proceedings is the next step.