Ownership of a trademark in Australia is primarily determined on a first-to-use basis, or if there is no use before filing, then on a first-to-file basis.

It is possible to protect an unregistered trademark under the tort of passing off, or under the Australian Consumer Law (in Schedule 2 of the Competition and Consumer Act 2010), that prohibits misleading or deceptive conduce in trade and false or misleading representations in relation to goods and services.

The rights in unregistered trademarks are contingent on the reputation of the relevant trademark, that can be evidenced though material such as promotional expenditure figures, examples of how the trademark has been used and promoted, third-party evidence of the reputation of a trademark and survey evidence of public awareness of the mark.

Notably, section 120(3) of the Trademarks Act 1995 (Cth) provides an action for the infringement of a well-known trademark where the infringer uses a substantially identical or deceptively similar trademark, and the infringing mark indicates a connection between the unrelated goods or services and the registered owner of the well-known trademark, and the interests of the registered owner are likely to be adversely affected.

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