Can a business here use the same name as a business overseas?
I am launching a clothing label in Australia. I am aware of a business in the United Kingdom with the same brand name but they look to be small. Am I OK in using this?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Lance Scott, Paddington 2021 NSW
- Trade marks are territorial rights. You should conduct thorough searches to see if this UK trader has registered its trade mark in Australia, Europe and possibly other countries.
- Checks need to be made as to whether there have been any sales made and reputation established in Australia because even if small it may be that some sales constitute trade mark use and therefore give rise to superior rights.
- Consider applying to register your trade mark in Australia to improve your position from a defensive position.
- Even though there may be no conflict in the respective marketplaces there may be conflict online. Thorough checks are warranted to assess whether it would be desirable to co-exist with this other brand especially in relation to social media. Also the existence of this other trader may be a direct obstacle to your expansion into other markets if your clothing line takes off.