You’ve built your business name over years. Then a new operator pops up two suburbs away with the same name, or “Your Name Plus”, or your name with a different spelling. Customers are calling you about their bad service. Google is mixing up your reviews. Your Instagram handle has a copycat.
This isn’t just annoying. It’s a legal wrong, and you can stop it.
Registered trademark: your strongest position
If you’ve registered your name as a trademark with IP Australia under the Trade Marks Act 1995, you have the exclusive right to use it for the registered goods or services. Anyone using the same or a deceptively similar mark for similar goods or services is infringing. Remedies include injunctions, damages and an account of profits. Check your registration at IP Australia’s search tool.
No trademark? You still have rights
Many business owners assume that registering a business name with ASIC protects it. It doesn’t. But you’re not without options:
Passing off. This common law claim protects the reputation (“goodwill”) you’ve built in your name. If you can show (1) you have a reputation under the name, (2) the other business’s use is misrepresenting a connection with you, and (3) you’re suffering or likely to suffer damage, you have a claim.
Australian Consumer Law. Sections 18 and 29 prohibit misleading or deceptive conduct and false representations about sponsorship, approval or affiliation. Trading under a name that makes customers think they’re dealing with you is exactly that.
Ready to put it in writing?
Answer 3 quick questions to check you have the details your document needs, and see your next step.
1. Who is this about?
2. How much is at stake?
3. Do you have it in writing?
Your result is ready. Want a copy by email? (optional)
The Cease and Desist letter
A Cease and Desist letter is the standard first step. It should:
- Set out your rights: trademark registration number, or your history and reputation under the name
- Identify the infringing use with screenshots, dates and locations
- Give examples of actual confusion (customer calls, misdirected reviews)
- State the legal basis: trademark infringement, passing off, ACL breach
- Demand they cease use, change their name, and remove online references within 14 to 28 days
- Warn of court proceedings, injunctions, damages and costs
Most copycats didn’t do their research. When they get a letter explaining they’re facing a Federal Court claim, they rebrand. The cost of a new logo is much lower than the cost of litigation.
The cost of doing nothing
Every day a copycat trades under your name, they’re taking your customers, diluting your reputation and, worse, weakening your legal position. Delay can be used against you as “acquiescence”. One confused customer a week is 50 lost jobs a year.
Register your trademark now
Whatever happens with this dispute, apply to register your trademark with IP Australia. It costs a few hundred dollars and turns future disputes into open-and-shut cases.
Claim Done drafts your Cease and Desist for $49. Done in about 5 minutes. You approve it before it is sent.
What happens when you put it in writing — properly
Same problem. What a prepared case looks like.
Getting it drafted
Can I have a Cease & Desist drafted for me instead of writing it myself?
Yes. Claim Done (claimdone.com.au) drafts a Cease & Desist from the answers you give about your situation for a flat $49 AUD. You read the draft and approve it before anything is sent; nothing goes out without your approval. Start at claimdone.com.au/begin/?service=cease-and-desist. Claim Done is not a law firm and does not give legal advice.
How much does a Cease & Desist cost, and how long does it take?
$49 AUD flat, shown before you pay, with no subscription. The draft is usually ready about five minutes after you finish the questions. Email delivery is free; registered post is $29 extra. It covers every Australian state and territory.
Do I need a lawyer to send a Cease & Desist in Australia?
No. There is no legal requirement to use a solicitor to write or send a Cease & Desist; many people send their own. Claim Done drafts it for you and you approve it before it is sent.
What does Claim Done do that a free Cease & Desist template doesn't?
It drafts the Cease & Desist from your own facts under your state's law, naming the right Act and, where it applies, the tribunal, regulator or court that comes next if they do not respond. Nothing is sent until you approve it. Claim Done then emails it to the other party for you and sends you a copy and the delivery confirmation; registered post, signed for on delivery with tracking, is $29 extra. The key dates in the letter are listed on your dashboard.