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Use It or Lose It: What Happens When a Trade Mark Collects Dust?
What’s in a name I hear you ask?
Well, sometimes, everything.
To get straight into the picture, imagine that you have worked tirelessly to build a brand, pouring creativity, sweat, and late-night snacks (hopefully Kit Kats!) into something you’re proud of.
Let’s say your brand is called “GlowWell” (because who doesn’t want to glow well?).
You’ve got a killer product range, glowing reviews (pun intended), and a logo that makes your competitors weep with envy.
But just as you’re about to launch, a bombshell drops. You discover that “GlowWell” is already a registered trade mark in Australia. The catch? The trade mark sems to have been sitting on the register for years, untouched, unloved, and—most importantly—unused.
What do you do? Is your own Glow Well dream crushed? Not necessarily.
The dust-covered trade mark dilemma
Here’s the thing about trade marks: you don’t get to just sit on them forever. You can keep renewing them but if you don’t use them that is another matter.
Australian trade mark law operates on a simple principle: use it or lose it. If someone has registered a trade mark but hasn’t used it in the market for three years or more, you may have a golden opportunity to challenge it.
This is where the non-use action comes in.
What’s a non-use action? Let’s break it down
At Sharon Givoni Consulting, we handle many cases involving abandoned or neglected trade marks, helping businesses free up these valuable assets for those who genuinely want to use them.
Whether it’s a forgotten brand or a mark sitting dormant for years, there’s often an opportunity to challenge the registration and put the mark back into circulation.
If you can prove that the registered owner hasn’t used the trade mark in good faith in Australia for three consecutive years, you may be able to have it removed from the register. But—here’s the kicker—this process isn’t as simple as filing a form.
Suppose “GlowWell” is owned by an overseas company that registered the trade mark years ago.
You scour the internet and local shops but can’t find any trace of their products in Australia. Not a social media post, not a website mention.
You’re starting to think the mark is gathering more cobwebs than customers.
This is where we can help.
We can file a non-use application with IP Australia, effectively challenging their ownership of the mark.
What happens if they fight back?
Usually. if the trade mark owner can prove they’ve been using the mark in good faith—or even have solid plans to use it in the near future—they could successfully defend the non-use action.
Why it matters
Non-use actions are a powerful tool for entrepreneurs, creatives, and businesses to clear the path of trade mark roadblocks.
They ensure that the trade mark register is a living, breathing record of active marks—not a graveyard of unused ideas. And if you’re on the receiving end of a non-use action, it’s a reminder to actively use your trade mark or risk losing it.
The Takeaway
So, use it or lose it. And if someone’s not using it, maybe it’s time to claim your place!
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.