Internet Trademark Infringement
Please ensure you read and understand the disclaimer before reading this article. Always consult a qualified lawyer for your legal advice.
The Internet is a good tool but sometimes it can be tricky as there are many rules and laws that apply to the Internet that business owners have never had to encounter before in the ordinary brick-and-mortar business world.
One of these problems is Internet trademark infringement. Before the World Wide Web, trademark and copyright issues were pretty cut and dry. If you had a trademark registered in your name and someone else tried using it, you could then press charges for infringement. The problem with the internet is that someone could have your same trademark legally registered in another country and you have ownership in your country. So when using on the Internet, who has the rights to it and when can you say that your trademark has been infringed upon?
How do you know who has the right to use a trademark online and what can you do if it looks like someone is trying to copy your product or pass theirs off as yours? To understand when your rights have been infringed upon under the law you must understand the ruling of the Federal Court which says that before a foreign based website can be accused of trademark infringement, they must be proven to market directly to Australian customers.
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It’s important to understand with your own trademark that once registered, it serves to distinguish your goods or services from that of other businesses but it is limited to Australia only. There could be someone else who legally has the same symbol, emblem, phrase, word or other type trademark registered to their business in another country. When selling on the Internet, you still have the right to use your trademark as long as you are only directly selling and marketing to the Australian market. Another business cannot be accused of infringement unless they are deliberately marketing to Australian consumers.
If you feel that someone is unjustly using your trademark, you may have a claim for trade mark infringement or “passing off�. First you need to understand what these are and under what conditions you would be eligible to file a claim.
What is “passing off� and what is “trademark infringement� according to the law? Passing off usually refers to when one business creates a situation where customers make “trap purchases� because they think they are buying one product based on the trademark but in fact are buying another. This happens in the case of a product that is already popular. For example, if a company made accessories and called themselves “Guggi� and used the same trademark symbol as the famous “Gucci� it could be said that they were trying to pass their product off as the world-famous Gucci brand.
When a case of possible passing off is brought before the courts, it will need to be determined if:
- The advertising and sale of a particular trademarked product was in fact intentional attempts of “passing off� another trademarked product
- There is sufficient evidence to prove that the company was attempting to pass off their product as another’s
- Sales are likely to occur in Australia or the company is marketing to Australian consumers
For something to classify as trade mark infringement, there are also certain conditions which must apply.
It should also be understood that a product that advertises on the internet and to the “world at large� cannot be liable for trademark infringement of your trademark. To be considered for trademark violation, they would have to be intentionally and deliberately marketing their product to your Australian consumer base.
Even if it is determined that you have an eligible case of internet trademark infringement, your case will need to be taken through the courts or appropriate legal process of determining liability. Before prosecution can be made, you must prove liability through the court system.
When liability is determined, you still have to determine what the compensation will be. In some cases, the court may order that the offender pay monetary compensation to you for the damages they have caused. The amount of this can vary greatly. They may also be ordered to change or stop using their trademark. In some cases, they may only be told to stop or change the way in which they use the trademark or to stop marketing to Australia consumers.
If your case is on the flip side and you are actually being accused of Internet trademark infringement, it is equally important that you contact a qualified trade mark attorney as soon as you find out you are being accused. The faster you have someone working on your case, the better it will be for your outcome. Many cases such as this can be easily resolved without the need to go through the courts if you hire a lawyer that is up to date with the laws and knows how to assist you.
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