Online brand infringement presents serious legal and commercial risks for Australian businesses. With increased digital competition, unauthorised use of brand names, logos, product listings, and online content has become increasingly common. When infringement occurs, businesses may have access to several legal remedies under the common law in Australia, the Australian Consumer Law (ACL) and the Trade Marks Act 1995 (Act), depending on the nature and extent of the conduct.
Understanding the available remedies is essential for protecting intellectual property, maintaining brand integrity, and preventing consumer confusion.
What Constitutes Online Brand Infringement?
Brand infringement occurs when a third party uses a brand asset without authorisation of the brand owner in a manner that infringes legal rights or misleads consumers. In an online environment, this may include:
• Unauthorised use of a registered trade mark on websites or marketplaces
• Copying brand names, logos, or slogans in online advertising
• Imitating branding, packaging, or website design
• Selling counterfeit or imitation products
• Creating social media accounts or domain names that mimic an established brand
Such conduct may give rise to claims under the Act, the tort of passing off, or the ACL, depending on the circumstances.
Trademark Infringement Remedies
Where a business holds a registered trade mark, unauthorised use of a substantially identical or deceptively similar mark may constitute trade mark infringement.
Available remedies may include:
• Injunctions to prevent further use of the infringing mark
• Damages or an account of profits
• Delivery up or destruction of infringing goods
• Legal costs, subject to court discretion
Trade mark owners are generally required to establish ownership, unauthorised use, and a likelihood of consumer confusion.
Passing Off
Where a trade mark is not registered, businesses may still seek protection under the common law action of passing off. This remedy applies where a third party misrepresents their goods or services as being associated with another business.
To succeed in a passing off claim, a business must typically demonstrate:
• Existing goodwill in the brand
• A misrepresentation likely to deceive consumers
• Actual or potential damage resulting from the misrepresentation
Passing off claims are fact specific and often require strong evidence of market reputation.
ACL Remedies
The ACL prohibits misleading or deceptive conduct and false representations in trade or commerce. Online brand misuse may breach these provisions where it creates consumer confusion about the origin, sponsorship, or approval of goods or services.
Remedies under the ACL may include:
• Court orders restraining the conduct
• Compensation for loss or damage
• Corrective advertising
• Civil penalties in serious cases
Regulatory authorities may also commence enforcement action where conduct affects the broader public.
Practical Steps for Businesses
Businesses that identify potential brand infringement online should act promptly to assess their legal position. This may include:
• Gathering evidence of infringing conduct
• Confirming trade mark registration status
• Assessing the most appropriate legal remedy
• Seeking legal advice before issuing cease and desist communications
Early intervention can significantly reduce financial and reputational risk.
Conclusion
Online brand infringement can have far-reaching consequences for Australian businesses. The appropriate legal response depends on the nature of the infringement, the strength of existing intellectual property rights, and the commercial objectives of the brand owner. Obtaining legal advice early can assist in determining the most effective course of action.
If you believe your brand is being infringed by another party online, get in touch with us for a complimentary assessment of your rights.