But We Didn’t Copy Anyone!” — Why That Didn’t Save a Trade Mark Owner

But We Didn’t Copy Anyone!” — Why That Didn’t Save a Trade Mark Owner

Australia’s High Court has warned businesses not to ignore trade mark problems once they are discovered

A lot of businesses think trade mark disputes only happen when someone deliberately copies another brand.

The recent High Court decision in Zip Co Limited v Firstmac Limited [2026] HCA 16 shows that things are not nearly that simple.

In fact, the real legal danger often begins after a business becomes aware there may already be someone else out there with similar trade mark rights. And that is exactly where things unraveled for the buy-now-pay-later giant Zip.

The story behind the case

The case centered around the word “ZIP”.

Long before the well-known BNPL platform became a household name, another financial services company, Firstmac, already owned a registered Australian trade mark for ZIP in relation to financial services and loans.

Years later, two entrepreneurs came up with the idea of using “ZIP” for a fast-moving fintech business. According to the evidence, they genuinely thought the name sounded modern, catchy and energetic. They were not trying to imitate Firstmac.

Initially, they apparently did not know the earlier ZIP trade mark existed.

Then came the problem.

When the company applied to register its own ZIP-related trade marks, IP Australia issued adverse examination reports pointing to an earlier registered trade mark already owned by Firstmac for the word “ZIP”.

Importantly, both businesses operated in very similar areas — financial and lending services. Firstmac used ZIP for loan and financial products, while Zip operated a buy-now-pay-later fintech business. So although the businesses were not identical in every respect, they were close enough that consumers could potentially think there was some connection between them.

The marks themselves were also extremely similar. Both prominently used the word “ZIP”, which was the key and distinctive part of the branding.

In practical terms, IP Australia was effectively saying:

“There is already someone in this market with a very similar registered brand for related financial services.”

At that point, the company was formally on notice that there may be a trade mark conflict. They could see there was a potential legal problem because another business already had a similar brand operating in a similar commercial space.

Despite this, the business continued building the brand, expanding nationally and investing heavily in the ZIP name.

Eventually, they got sued.

The High Court ultimately found that the company could not rely on the “honest concurrent use” defense under the Trade Marks Act 1995 (Cth). The High Court ultimately found that the company could not rely on the “honest concurrent use” defense under section 122(1)(fa) of the Trade Marks Act 1995 (Cth).

In simple terms, that defense basically says:

“Even though another business already owns a similar registered trade mark, we should still be allowed to use ours because we adopted and used it honestly.”

The problem for Zip was that, while the Court accepted they may originally have come up with the name independently, things changed once they became aware of the earlier ZIP trade mark through the IP Australia adverse reports.

The Court essentially said:

“You cannot keep using a very similar brand in a closely related industry, after being warned about the earlier trade mark, and then simply say later: ‘But we didn’t mean to copy anyone.”

So the case became less about innocent adoption at the beginning, and more about what the business did after it knew there was a potential conflict. Importantly, the Court said honesty is not judged only at the moment a business first dreams up a brand name. It must be assessed at each point of alleged infringement. That distinction mattered enormously.

So what does “honest concurrent use” actually mean?

Australian trade mark law recognizes that, sometimes, two businesses may independently arrive at similar branding without bad intentions.

The law therefore allows a limited defense called “honest concurrent use”.

the High Court made it very clear that businesses cannot simply keep using a risky brand after warning signs appear and later say:

“But we didn’t mean any harm.”

The Court said judges should look at the situation the way an ordinary reasonable person would.

So the real questions become things like:

1. Did the business ignore obvious warning signs?
2. Did it get legal advice?
3. Did it properly look into the earlier trade mark?
4. Did it keep expanding the brand anyway?
5. Was it acting reasonably and fairly once it knew there might be a problem?

In other words, the law looks not just at how the brand started, but how the business behaved after it discovered there may already be someone else with similar trade mark rights.

In practical terms, the earlier innocence of adopting a name may not save a business later if it continues using the mark after learning about a conflict.

You need to copy on purpose to get in trouble with the law

This case matters because it reflects how trade mark problems often happen in everyday business life.

Some people think trade mark disputes only happen when a business deliberately copies another brand. But often that is not what happens at all.

Usually, someone comes up with a business name they genuinely love. They might brainstorm ideas with friends, check if the website domain is free, search Instagram and Google, and think:

“Great — no one seems to be using it.”

So they start building the business.

Then months later, the problem appears.

A brand problem discovered early may cost thousands.

A brand problem discovered after national expansion may cost millions.

How We Can Help

Sharon Givoni Consulting assists businesses with:

• Australian trade mark searches;
• brand protection strategies;
• responding to IP Australia adverse reports;
• trade mark disputes and infringement claims;
• trade mark applications; and
• brand enforcement and rebranding advice.

Obtaining advice early can often help businesses avoid costly disputes later.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.