You have built a slogan into the fabric of your brand — it is on your website, your packaging, your ads, and your social media. Then a competitor starts using something that is identical or close enough to make customers stop and wonder if the two businesses are connected. You want them to stop. The path you take depends on what rights you actually have, how the slogan is being used, and how much evidence of your prior use you can assemble.
The options available and one that usually is not
There are four legal routes that may protect a business slogan in Australia:
- Registered trade mark under the Trade Marks Act 1995 (Cth) — the most direct and enforceable form of protection if the slogan qualifies
- The Australian Consumer Law (ACL) — specifically the prohibition on misleading or deceptive conduct under s 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth)
- Passing off — the common law action available where a competitor misrepresents that their goods or services are connected with yours
- Contract and confidentiality — relevant where the slogan was disclosed to a contractor, agency, or business partner who has repurposed it
Copyright is sometimes raised as an option, but it rarely provides practical protection for slogans. Short phrases do not attract copyright protection in Australia as standalone works — copyright protects original expression in a work, and a brief tagline is unlikely to meet the threshold of originality required for a stand-alone claim. This does not mean copyright is irrelevant (a creative campaign featuring the slogan may be protected as a broader work), but it means copyright alone is not a reliable strategy for stopping a competitor from using a similar phrase.
Factors that shape enforcement
Whether you have a registered trade mark
A registered trade mark is the clearest enforcement tool available. Registration under the Trade Marks Act 1995 (Cth) gives you the exclusive right to use the mark in connection with the goods or services for which it is registered. You can take infringement action if a competitor uses a substantially identical or deceptively similar mark in relation to the same or similar goods or services.
Without registration, you are relying on unregistered rights — passing off or ACL — which are more fact-dependent, slower, and harder to enforce.
| Right | How you get it | What you need to prove |
|---|---|---|
| Registered trade mark | Application to IP Australia | That the mark was registered and is being infringed |
| Passing off | Common law — built through use | Goodwill, misrepresentation, damage |
| ACL s 18 | Statutory — applies to all traders | That the conduct is misleading or likely to mislead |
The practical implication: if your slogan is commercially important to your brand, registering it as a trade mark is almost always worth considering before a dispute arises, not after.
Whether the slogan qualifies for trade mark registration
Not every slogan can be registered. Under s 41 of the Trade Marks Act 1995 (Cth), a trade mark must be capable of distinguishing your goods or services from those of other traders. A slogan that merely describes what you do (for example, "fresh food every day" for a grocer) is likely to be refused as insufficiently distinctive.
Factors that help:
- The slogan is unusual, coined, or creative rather than descriptive
- The slogan is used consistently as a brand identifier, not just as general marketing copy
- You have used it long enough and prominently enough that consumers associate it with your business specifically
Factors that hurt:
- The slogan uses common words or phrases that competitors need to be able to use in trade
- It describes a quality, feature, or benefit of the product or service
- Very similar phrases are already registered or in use
If the slogan is descriptive, it can still be registered if you can show it has become distinctive through extensive use — what the Trade Marks Act calls "acquired distinctiveness". This requires substantial evidence of use, which takes time and expenditure to build.
How strong your evidence of prior use is
Whether you are pursuing trade mark registration, an ACL claim, or a passing off action, evidence of your prior use of the slogan matters enormously.
What courts and IP Australia look at:
- When you started using the slogan
- How prominently and consistently it has been used
- The reach of the marketing (geographic spread, media channels, volume)
- Whether customers associate the slogan with your business specifically
- Whether you have received any enquiries that suggest consumer confusion
The practical implication is that building and maintaining an evidence file — dated screenshots, advertising records, invoices for print materials, media coverage — should be ongoing, not something you try to reconstruct when a dispute has arisen.
What the competitor is actually doing
The strength of your claim against a competitor depends heavily on what they are doing with the slogan and how the market has reacted.
An ACL claim under s 18 of the ACL focuses on whether the conduct is likely to mislead or deceive. Courts consider the impression created in the minds of the relevant audience — you do not need to prove anyone was actually misled, but you do need to show the conduct creates a misleading impression. The more similar the branding, the closer the markets, and the more a reasonable customer would be confused, the stronger the ACL case.
A passing off action requires proof of goodwill (a reputation in the slogan associated with your business), a misrepresentation by the competitor that suggests their business is connected with yours, and damage or likelihood of damage to your goodwill. Passing off claims are evidence-intensive and typically require you to show the slogan has become strongly associated with your business before the competitor's use began.
Your options by registration status
If you have a registered trade mark: Your clearest path is a trade mark infringement action. You can also pursue ACL or passing off in parallel, but the registered mark is the strongest foundation.
If you do not have a registered trade mark but have strong prior use: Passing off and ACL are available, but you need substantial evidence that the slogan is associated with your business and that customers are genuinely confused. The absence of a registration makes enforcement slower and less certain.
If the slogan was used by a former agency or contractor: Contract law is the primary vehicle. Review whether your agreement with the agency or contractor contained IP ownership clauses and confidentiality obligations. If it did, you may have a contractual remedy regardless of whether trade mark registration or passing off is available.
If the slogan is highly descriptive: Your legal position is weaker, and you should assess whether trade mark registration is even feasible before investing in a dispute. It may be more cost-effective to strengthen your brand through other means.
How Artificer Legal can help protect your brand
Slogan protection involves a mix of IP strategy, evidence gathering, and enforcement — and the right approach depends on where you are in the brand lifecycle. Artificer Legal can assist with:
- Assessing whether your slogan qualifies for trade mark registration — reviewing the mark against the distinctiveness requirements and checking for conflicts on the register
- Filing a trade mark application — including selecting the right classes for your goods and services, which is where many applications are undermined
- Advising on unregistered rights — assessing the strength of a passing off or ACL claim based on your evidence of use and the competitor's conduct
- Cease and desist correspondence — drafting a letter that accurately states your legal position and creates a clear record of having put the competitor on notice
- Confidentiality and IP clauses — reviewing or drafting agreements with agencies, contractors, and partners to protect brand assets before they are disclosed
Acting before a competitor copies you — rather than after — is where IP strategy provides the most value.
Register before a competitor starts using it
The enforcement question — whether you can stop a competitor from using your slogan — almost always comes down to whether you registered the trade mark before the competitor started using the same or similar phrase. Registration shifts the burden significantly: you do not need to prove goodwill, demonstrate consumer confusion, or assemble years of evidence. You point to the register, demonstrate the mark is being used in relation to similar goods or services, and the legal framework does the rest.
Unregistered rights are real and worth pursuing in appropriate cases, but they are slower, harder to prove, and less predictable. The businesses that regret not registering are almost always the ones who assumed it could wait.
Key points:
- Registered trade mark protection is the most direct way to stop a competitor from using your slogan — registration under the Trade Marks Act 1995 (Cth) gives you exclusive rights to use the mark in your registered classes.
- Short phrases rarely attract copyright protection in Australia — trade marks, ACL, and passing off are the relevant tools for slogan disputes.
- A slogan must be capable of distinguishing your goods or services to qualify for registration; purely descriptive phrases face higher barriers.
- ACL s 18 protects against misleading or deceptive conduct and can apply where a competitor's similar slogan creates consumer confusion, even without a registered mark.
- Passing off requires proof of goodwill, misrepresentation, and damage — it is available without registration but demands substantial evidence of prior use.
- An ongoing evidence file — dated screenshots, advertising records, media coverage — makes enforcement significantly easier if a dispute arises.