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Corporate Advisory

Intellectual Property

A brand or a product without registered protection is a brand someone else can copy, and often does. We help clients secure and defend the intellectual property that carries their business value.

A surprising number of businesses build significant value around a name, logo, or product design before checking whether it is actually available to register, or whether someone else has already claimed it. We start most trade mark engagements with a search, because the cost of finding out a mark is unavailable before filing is far lower than the cost of finding out afterward, once the brand is already in use.

We handle trade mark filing and opposition under the Trade Marks Act 1999, advise on copyright, design, and patent protection, and act in passing off and infringement disputes. We also advise on brand protection more broadly, including takedown requests where a brand is being copied or misused online.

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Scope

What we handle

01

Trade mark search and filing

Conducting availability searches and filing trade mark applications in the appropriate classes under the Trade Marks Act 1999.

02

Opposition and rectification

Representing clients in opposition proceedings against a conflicting mark, and rectification applications to remove a wrongly registered mark.

03

Passing off and infringement

Advising on and litigating passing off claims for unregistered marks and infringement claims for registered ones.

04

Copyright protection

Advising on copyright subsistence, registration, and enforcement for literary, artistic, and software works under the Copyright Act 1957.

05

Design registration

Advising on registration of industrial designs and the distinction between design protection and other intellectual property rights.

06

Patents overview

Advising on the general framework for patent protection under the Patents Act 1970 and referring drafting to a registered patent agent where required.

07

Brand protection and takedowns

Advising on enforcement strategy against counterfeit sellers and unauthorised use of a brand online, including takedown requests.

In Detail

Registering and defending a trade mark

Why the search comes first

Filing a trade mark application without first searching the register risks building a business around a name that is already registered, or that is confusingly similar to something registered, in the relevant class. A search does not guarantee the mark will proceed to registration, since new applications can still be opposed, but it substantially reduces the risk of an expensive rebrand later. We generally search before drafting the application itself, not after filing.

Classes and the filing process

A trade mark is registered in relation to specific classes of goods or services under the Trade Marks Act 1999, and the same word can be validly registered by different owners in unrelated classes. Choosing the right classes at filing matters, because protection generally does not extend beyond the classes actually claimed. After filing, the application is examined by the Registrar, published for opposition, and, if unopposed or if any opposition fails, proceeds to registration.

Opposition and rectification

Once a mark is published, third parties have a window to file opposition on grounds such as similarity to an earlier mark or lack of distinctiveness. We represent clients on both sides of opposition proceedings, whether defending a filed application or opposing a competitor’s. Separately, a rectification application can be filed to remove a mark that was wrongly registered or has since become liable to removal, for instance for non-use over a prescribed period.

Passing off versus infringement

Infringement is a statutory remedy available to the owner of a registered trade mark against unauthorised use of an identical or deceptively similar mark. Passing off is a common law remedy, available even without registration, protecting the goodwill a business has built in an unregistered mark or get-up, on the basis that the defendant has misrepresented its goods or services as those of the claimant. Registered owners frequently plead both causes of action together, since passing off can succeed even where a particular infringement argument is weaker. Remedies in both kinds of action can include an injunction restraining further use of the mark, an account of profits or damages, and, in appropriate cases, delivery up or destruction of infringing material, though a court retains discretion over which remedies are actually granted on the facts of a given case.

Questions

Commonly asked

Timelines vary considerably depending on whether the application is opposed and how the Registrar’s office is processing filings at the time. An unopposed application can proceed to registration in a shorter period, while an opposed application can take substantially longer, since it involves an exchange of evidence and, often, a hearing. We advise clients on realistic timelines for their specific mark and class rather than a single fixed figure.

Yes, through a passing off action, provided you can show goodwill in the mark, misrepresentation by the other party, and resulting damage or likely damage. This is generally harder to prove than a straightforward infringement claim based on a registered mark, since you must establish reputation through evidence rather than relying on a certificate of registration, which is one reason we recommend registering early.

No. Copyright under the Copyright Act 1957 arises automatically on creation of an original work, without any requirement of registration. Registration is not a precondition to protection, but it creates useful evidence of ownership and the date of creation, which can matter significantly if authorship or ownership is later disputed. For that reason, we generally recommend registering works of real commercial value rather than relying on unregistered copyright alone.

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