Here's some helpful information on enforcement

IP enforcement involves taking action against IP infringement. Before taking enforcement action, it’s worth carefully considering whether infringement has occurred.
Infringement involves unauthorised use of your IP. Infringement can look different depending on the IP right and the nature of the infringement. This is not meant to be an exhaustive list of what IP infringement looks like but rather an indicative guide to help you identify how IP infringement can look, and some examples where infringement might not have occurred.

This could look like someone else doing the following, without your permission or paying the relevant licensing fee:
- Using your trade mark (such as a brand name or logo) on their own products.
- Selling a patent-protected product.
- Using a patent-protected method or process in the manufacture or operation of their product.
- Selling something that is similar to your registered design.
- Breeding or selling a plant variety which is protected by a plant breeder’s right.
It can be a good idea to check existing licencing agreements and permissions when considering if infringement has occurred.
Note: Ultimately, whether IP infringement has occurred can involve very complicated analysis - only the courts can determine whether infringement has occurred. IP professionals, such as lawyers specialising in IP or trade mark and patent attorneys, may be able to give you an indicative opinion. However, even they will only be able to tell you with some degree of certainty.
Trade marks
Trade mark infringement in Australia occurs when someone uses a sign that is substantially identical with, or deceptively similar to, a registered trade mark, in relation to the same or similar goods or services for which the trade mark is registered, without permission.
To identify potential infringement, you can look at your registered trade mark, and the sign being used by the other party, and consider the following:
- Whether the trade marks look or sound similar to the ordinary consumer.
- Whether the other party is using the mark in the course of trade (if they are not using it for commercial purposes, it might not be infringement).
- Whether it's being used on goods or services(Opens in a new tab/window) which are the same as or similar to those covered by your trade mark registration.
Two trade marks with similar names might not be infringing if they are used on different goods or services.
For example, a trade mark registered for coffee (in class 30) would not be infringed even by use of a very similar trade mark for chemical adhesives given the two goods are so different in nature, use and trade channels. Goods and services can be closely related even if they are in different classes. You should consider the nature of the goods or services, how they are used and what trade channels they are sold through, for instance are they sold by the same trader, are they next to each other in the supermarket?
Patents
Patent infringement in Australia occurs when someone makes, uses, sells, offers to sell, hires or imports a product or process that contains all the essential features of a claim in a granted patent, without the patent owner's permission. Identifying potential infringement generally involves carefully comparing the product or process suspected of infringement against the claims of your patent, as it's the claims that define the scope of protection. For example, if your patent claims a device with components A, B, and C arranged in a specific way, and you discover a competitor selling a product that uses these same components in the same arrangement, this could constitute infringement. It's important to note that even if someone makes minor modifications or adds additional features, they may still infringe if all the essential elements of your patent claim are present in their product. However, if they find a different way to achieve the same result without using all the claimed features, this might not be infringement.
Patent infringement cases often involve complex technical and legal considerations so it's a good idea to document evidence of the potentially infringing activity, obtain samples if possible, and seek professional advice on any possible infringement.
Designs
Designs are currently beyond the scope of this tool. For more information about designs infringement please visit Someone is using my IP(Opens in a new tab/window) or seek professional advice.
Plant Breeder's Rights
Plant breeder’s rights are currently beyond the scope of this tool. For more information about plant breeder’s rights infringement please visit Someone is using my IP(Opens in a new tab/window) or seek professional advice.
Unregistered trade marks vs registered trade marks
A trade mark is a type of IP right which distinguishes your unique brand, product or service from other competitors in the market. A trade mark can be used to protect your business name or aspects of your brand. 
Trade marks can be registered or unregistered. A registered trade mark generally provides stronger legal protection and is easier to enforce when compared to an unregistered trade mark. Registering your trade mark enables you to have:
- a business asset which becomes more valuable the more successful your business becomes
- the legal right to place the ® symbol next to your trade mark
- exclusive rights to use your trade mark in Australia
- the ability to legally deter others from using your trade mark
- the ability to sell your trade mark, or license it for others to use.
However, not all trade marks are registrable. There are certain words, phrases and images that can't be registered, or can only be registered under special circumstances or upon provision of evidence. Below are some common reasons as to why a trade mark may not be registrable with IP Australia:
- A trade mark is non-distinctive and is something other traders may legitimately want to use. This could include common surnames, pictures of the goods, descriptive words or images, ordinary colours and shapes of the goods, sounds and scents commonly associated with the goods, and names of geographical locations where goods or services may originate.
- Earlier, confusingly similar trade marks for the same or similar goods or services exist.
- A trade mark is inherently confusing, likely to deceive or confuse the public because of some inherent connotation. For example, a trade mark contains the words ‘vegan friendly’ but the goods claimed are beef products. This has the potential to mislead consumers as to the suitability of the product for vegan consumption.
- A trade mark is scandalous, likely to cause offence to a significant number of Australians.
- A trade mark is prohibited by legislation. Other Australian laws may prohibit the use or registration of various words or images as trade marks (e.g. Defence force words or symbols or the word ANZAC). In addition, as a member state to the Paris Convention for the Protection of Industrial Property(Opens in a new tab/window), Australia may refuse to register trade marks that consist of various words and images of foreign countries and intergovernmental organisations (e.g. UNICEF).
Note: While a trade mark may appear unregistrable on face value, it may still be able to achieve registration for other reasons, including that the owner has demonstrated it has or will become seen as a distinctive brand in the market.
Not all registered trade marks have equal strength
Some trade marks may be more difficult and costly to enforce even if they are registered, due to factors such as their inherent lack of distinctiveness (i.e. being too generic or descriptive), extent of usage in the marketplace, or evolving market conditions.
While all valid trade marks are enforceable, generally speaking, some trade marks can be easier to enforce than others. These trade marks are sometimes called 'strong' trade marks. Strong trade marks might be creative, arbitrary, fanciful or unusual, allowing you to easily distinguish your products or services apart from your competitors. The more unique or fanciful your trade mark is in relation to your goods or services, other traders are less likely to have legitimate reasons to use something that are the same or similar to your trade mark.
On the other hand, 'weak' trade marks may contain descriptive matter, or be very similar to trade marks being used by competitors for the same goods or services. Changes in market conditions or consumer behaviour may make a mark weaker over time too. In the case of ‘weak’ trade marks, it may be more difficult to show that other traders are using that trade mark (or something similar) in a way that the law considers an infringement, as opposed to purely descriptive use.
Tools and resources
IP Australia provides tools and resources to help you check whether your trade mark would meet requirements for registration. Checking your trade mark’s registrability can also give you some indication on the strength of your trade mark when you wish to enforce it in the future.
TM Checker
TM Checker(Opens in a new tab/window) is a free tool that helps give an early indication of problems your trade mark might face when it is examined. It uses AI to quickly check your proposed trade mark, based on internally-trained data and examinations previously conducted by IP Australia. You don't need an online account to use TM Checker, only if you decide to apply for a trade mark.
This easy-to-use tool gives your business:
- An early indication of if your proposed trade mark can be registered in the relevant classes of goods and services.
- An estimate of how much your application could cost.
- An estimate of how long the trade mark application could take.
- A seamless link to the trade mark application process.
TM Headstart
TM Headstart(Opens in a new tab/window) is an application method designed to assist first-time trade mark applicants.

When you apply with TM Headstart, an examiner will assess your trade mark before you formally apply. You'll get feedback and an opportunity to amend your application, increasing your chances of getting a registered trade mark.
If you use TM Headstart:
- You'll receive feedback from an examiner before you file your application so you can quickly understand if your trade mark is valid or likely to encounter objections during examination, and fix any errors.
- After receiving feedback, you have five business days to submit changes (or formalise your application). Most amendments will attract a fee.
- If your application is successful, your trade mark will be in effect from the date you formalise your application.
As discussed above, not every registered or registrable trade mark has equal level of strength or enforceability. There are multiple factors that can influence the enforceability of a trade mark when there is a dispute or suspected infringement. An IP professional such as an IP attorney can help you make this assessment on the overall strength of your trade mark and whether it would be enforceable in specific circumstances.
See also
IP infringement looks different for each IP right. Generally, proving infringement means showing that the infringer has copied all or a substantial part of your product, method or process. Only the owner of an IP right or someone entitled to act on their behalf can start infringement proceedings.
You may wish to seek professional advice(Opens in a new tab/window) to help you consider whether your IP has been infringed.  If you make a false claim, you could be liable for damages.
Trade marks
For trade marks, infringement may occur if another mark is:
- Being used on the same or similar goods or services(Opens in a new tab/window) that are registered to your trade mark.
- Sufficiently similar to your trade mark to cause confusion about the product's origin.
In Australia, evidence of trade mark infringement can be collected to strengthen a case that trade mark infringement has occurred. Some types of evidence that can be collected include:
- Documented instances of the other mark (the mark which you suspect of infringing) being used in commerce, such as photographs of products, packaging, or advertising materials bearing the similar mark.
- If the other mark is being used online, screenshots of websites where the products are being sold or advertised, along with dates and times of when this was captured.
- Financial records showing lost sales or diverted customers (to help demonstrate economic impact).
- Market surveys (to help establish consumer confusion between the marks).
- Witness statements from customers who have been misled (to help provide direct evidence of deception).
- Documentary evidence of the other trader's knowledge of your trade mark, like correspondence or business records (to help prove intentional infringement).
- Keeping receipts or invoices after purchasing the other trader's products yourself.
It's also valuable to gather evidence of your own continuous use of the trade mark, and its reputation, through historical marketing materials, sales records, and media coverage. This shows that your trade mark has been used and has a reputation in the marketplace.
After you have gathered evidence, you may wish to seek professional IP advice to review the evidence and ensure that IP infringement has actually occurred.
Patents
Patent infringement in Australia may occur when someone makes, uses, sells, offers to sell, hires or imports a product or process that contains all the essential features of a claim within a granted patent, but without the patent owner's permission. To help support your patent infringement case, there are a number of steps you may wish to take:
- If the suspected patent infringement involves a product (that contains all of the features of the patent), try to purchase or otherwise obtain a sample of the allegedly infringing product. It can be a good idea to keep records showing where and when you obtained it (such as receipts or invoices).
- Additionally, if the patented invention (such as a device or a process) is being advertised, sold or publicly used, gather evidence such as screenshots, technical documents or manuals or photographs of the advertising or usage of the invention. It's also a good idea to keep evidence of the capture dates of the evidence (as dates are often pivotal in patent infringement cases).
- You may also have access to user manuals, brochures, product specification sheets or other technical documentation that may demonstrate how the invention works or is made. These can be invaluable when comparing the allegedly infringing invention to your patent claims.
In infringement cases, the comparison is typically between the patent claims and the suspected product or process. Evidence showing that all the features listed in your claims are present in the accused product or process is crucial. If possible, it can be useful to keep records or documentation regarding how the accused products features align with the features of your patent claims. In some cases, it can be worth considering an independent expert to provide technical analysis or expert testimony.
Some patents cover processes, or internal components that aren’t readily visible. Gathering evidence in these cases may be slightly more difficult than external or obvious product features. In these cases, if possible, records of the other party's method of production can be persuasive. If this is difficult to obtain, publicly available statements or job advertisements (that discuss specific techniques, processes or technologies used) can help fill these gaps. Again, it can be worth considering an independent expert to provide technical analysis or expert testimony.
Engaging an independent technical expert can help confirm whether the product or process suspected of infringement matches the features of your patent claims. Their expert report can be used in legal proceedings and may strengthen your position. Though it is important to note that not all enforcement actions you may choose to take will use, accept or consider expert testimony (including most informal process such as mediation); it is likely that court proceedings will derive the most value from the use of an expert witness.
You may engage legal counsel (such as a patent attorney or IP lawyer), who can help ensure that the evidence gathered is admissible and persuasive in court.
It is important to obtain all your evidence through legal means. Evidence gathered through trespass, or a breach of confidentiality will likely be inadmissible, and you could potentially face legal consequences.
In the case that some of the evidence of the suspected infringement is a trade secret (such as a secret process), it may be harder to gather evidence. In these cases you might wish to consider securing legal counsel to access legal avenues for obtaining evidence. In some cases, courts can grant an Anton Piller order(Opens in a new tab/window) (a type of search warrant) if there is a fear that evidence will be destroyed.
In summary:
- Gather evidence of the product or process you suspect of infringing your patent.
- Identify whether it utilises all features of the patented claims.
- Consider engaging a legal professional.
- Consider the legality of your evidence gathering.
Designs
Designs are currently beyond the scope of this tool. For more information about designs infringement please visit Someone is using my IP(Opens in a new tab/window) or seek professional advice.
Plant Breeders Rights
Plant breeder’s rights (PBRs) are currently beyond the scope of this tool. For more information about PBR infringement please visit Someone is using my IP(Opens in a new tab/window) or seek professional advice.

Here's some helpful information on enforcement

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