Trademark Disputes:

Trademarks must first be distinguished from other areas of intellectual property litigation, such as copyrights and patents. These are all areas of sometime heated litigation because of the asset value of each of these for a successful business.

A trade mark is a symbol, logo, visual device, word, phrase or some combination of the foregoing. This usually relates to a product. A service mark is the same as a trademark but relates to the provision of services. In Australian law, a commercial enterprise that conduct a business for the provision of goods and/or services will use what is known as a trademark to distinguish its goodwill against competitors. Good will is the reputation of the business as well as its recognition among the market. Copyrights, on the other hand, are assertions of ownership over the authorship of a work, which is recorded in some tangible medium, and patents are usually granted to inventors of machines, processes, manufacturing systems or the composition of a substance or matter.

Trademarks are often (but not always) connected to some commercial enterprise, project or endeavour and therefore any determination of trademark disputes may rely on either:

• Priority disputes between users of trademarks, either in terms of the priority of time or the magnitude and prevalence of use; and/or
• Contractual provisions for the use of trademarks, which are often contained in franchise agreements and/or license agreements.

Negotiated resolutions are certainly possible and these can often take the form of Deeds of Agreement between disputing parties, where each promises to use a trademark in a particular way, either by limiting its use geographically or in terms of the good or service provided to the market. As litigation is expensive and time consuming, it can take a severe toll on the health of a business using the disputed trademark. The trademark litigation team at Navado takes these things into consideration and where appropriate and possible, seeks to resolve the conflict through processes which aim to arrive at a mutually agreeable resolution before litigation is contemplated. This does not however mean that preparation for litigation should not be undertaken.

The resources used by the commercial litigation team at Navado are integrated with the resources used by the civil litigation team. The effect of this is that a civil litigation solicitor who may be dealing with a case with a commercial aspect will be able to quickly identify that aspect and consider it in the legal advice provided to the client. Likewise the commercial litigation lawyer will also be in a position where the synergistic organisation of the litigation lawyers will increase efficiency and overall attention to the detail of each case. Damages can be sought for infringement of trademarks and where a case is a complex one, multiple heads may be available to prosecute under. Similarly, a defendant may be able to defend against a claim while cross-claiming against his accuser. A diverse litigation team, with trademarks experience but also general commercial litigation and civil litigation experience, working in co-operation with each other, can become a formidable weapon when resolving disputes either in negotiated settlements or court proceedings.

If you require assistance with a trademark disputes matter, you may wish to contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and make an appointment to see one of our solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.