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JacquiPryor
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Hi,

There’s no simple ‘yes or no’ to these sorts of questions. Most often infringement is a case-by-case scenario that involves investigation and advice.

The short answer is ‘possibly’.

Infringement, as a very general idea, occurs if someone uses an unregistered sign as a trademark that is the same or deceptively similar to a registered trademark, and they are doing so for the same/related goods or services.

The simpler question is usually “is there likely to be confusion because of the similarities?”. If the answer is yes, then quite possibly there would be grounds for the trademark owner to allege infringement to be occurring.

The Trade Marks Act also allows situations where infringement is taken to have not occurred – for example, the alleged infringer actually has the earliest use of the particular trademark in question for those goods/services.

Also – be mindful that if you do register a name as a trademark and use it then this won’t be infringement. One trademark owner cannot take action against a person that is using a trademark that they’ve been afforded the right to use.

I note the above is relevant to trademark infringement, this is not to say a person may not have grounds to act under other areas of law even if you have secured a trademark registration, but generally it is less likely action would be instigated against a trademark holder.