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JacquiPryor
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Hi [USER=120603]@TM1[/USER]

This is a tricky thing to answer on a forum like this, as there are many factors involved depending on the particular product/brand and all surrounding circumstances. The following is for information only and is not advice as each case can be different.

Essentially it sounds like you would be a parallel importer of the goods as you don’t have permission from the manufacturer in USA. Parallel importing is legal in Australia, but is not without risk. The ACCC has some good information to consider: https://www.accc.gov.au/business/treating-customers-fairly/selling-parallel-imports

Putting aside trade mark matters (which I will discuss below), you as the importer would essentially carry the risk of liability in the product if not selling with authorisation – so, for example, if something bad happened with a customer consuming the product you couldn’t necessarily go back to the manufacturer for help or compensation. For these reasons, ACCC suggests that if you are a parallel importer it is made clear that’s the case when selling the product, and ensuring Australian customers know that any warranties the manufacturer might usually offer won’t apply (although, you can of course choose to mirror those some warranties).

From the trade mark/IP perspective. It gets complex. The rightful owner of a trade mark in Australia is typically the person/company to first use the trade mark in Australia or the first to apply for the trade mark, and, if you were to file a trade mark application and it is approved it then goes through an opposition period where others could object if they think you/your business is not the rightful owner or there is any bad faith in the filing. Without more detail about the product/brand involved it’s hard to say whether you would be able to file in your ownership or not from a trade mark law perspective.

In addition to trade marks, if the brand has graphic logos these would be covered (automatically) by copyright laws. So, even if you did register the trade mark some times original manufacturers overseas might rely on copyright in graphics/logos to try and get you to stop selling a parallel import product. Again, it’s very much situation dependent.

In short, yes it’s legal to import without permission but this doesn’t mean there are not risks and it doesn’t mean the original manufacturer will like it. I hope the above helps, and particularly the ACCC guidance I hope is helpful.