You've landed on a tagline that captures exactly what your business does — it's on your packaging, your social bios, your ads. Then you spot a competitor using something nearly identical. At that point the question "can I actually stop them?" becomes urgent, and the answer depends heavily on which legal right you have, or can still get.
There are three substantive paths Australian businesses use to protect a slogan: registered trade mark rights, the misleading conduct prohibition in the Australian Consumer Law (ACL), and the common law action of passing off. A fourth path — contract — is narrower but relevant where an agency or contractor was involved in developing the slogan. These options are not mutually exclusive, but they have very different strength profiles. The real decision is which one you should build your strategy around, and in what order.
What each protection actually does
Before weighing the factors, it helps to be clear on what each path gives you and where it falls short.
Registered trade mark — Under s 17 of the Trade Marks Act 1995 (Cth), a trade mark is a sign used, or intended to be used, to distinguish goods or services provided in trade by one person from those of another. "Sign" is defined in s 6 to include any word, letter, name, phrase, or combination of these — so a slogan qualifies. Once registered, you get a presumptive exclusive right to use the mark in connection with the goods and services classes you nominated. Enforcement is relatively straightforward: you have a public register entry to point to, and an infringer cannot easily argue they didn't know.
ACL — misleading or deceptive conduct — Section 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) prohibits a person from engaging in conduct, in trade or commerce, that is misleading or deceptive or is likely to mislead or deceive. If a competitor's use of your slogan (or something very close to it) causes consumers to think there is a connection between the two businesses, that conduct can fall within s 18. No registration is required. The downside is that success turns on evidence of actual or likely confusion in the marketplace, which is a fact-intensive — and potentially expensive — argument to run.
Passing off — This is a common law action, preserved (but not codified) by s 230 of the Trade Marks Act 1995 (Cth). To succeed, you generally need to establish that your slogan has acquired a reputation in the market, that the competitor has misrepresented their business as being connected with yours, and that this has caused (or is likely to cause) damage. Like an ACL claim, no registration is required — but the evidence burden is high, and the claim is closely tied to how well-known your slogan actually is.
Contract — Where a marketing agency, freelancer, or business partner was involved in developing the slogan, your written agreements matter. Clear intellectual property ownership clauses and confidentiality obligations can give you a direct contractual claim if that party later uses the concept for a competitor. This path operates alongside (not instead of) the others.
What to weigh when choosing a path
How much certainty you need when enforcing
A registered trade mark gives you the clearest basis for enforcement. You do not need to prove reputation, consumer confusion, or market overlap to the same degree — the register entry speaks for itself. If your slogan is central to your brand and you might need to act quickly against a copycat (for example, sending a cease-and-desist that is credible without litigation), registration is the path that gets you there.
By contrast, ACL and passing off claims depend on what you can prove about the market. That is a workable position if your brand has been operating for years and has substantial recognition, but it is a difficult position if you are a newer business or if your slogan is used inconsistently.
Whether your slogan is actually registrable
Not every slogan will clear the registration hurdle. Under s 41 of the Trade Marks Act 1995 (Cth), an application must be rejected if the trade mark is not capable of distinguishing the applicant's goods or services from those of others. IP Australia's examination guidance identifies several categories that struggle:
- Laudatory words or phrases — slogans such as "superior quality", "number one", or "best in class" are considered devoid of inherent distinctiveness because traders in every industry use them to extol their products
- Purely descriptive phrases — slogans that simply describe what the business does, its price point, or the nature of its goods
- Common words used in their ordinary sense
A slogan that is distinctive, coined, or strongly associated with your brand through long and consistent use has a much better prospect. If your slogan has been used heavily over several years and customers genuinely associate it with your business, s 41 also allows you to establish registrability through acquired distinctiveness — though you will need evidence of that use.
The classes you register in
Trade marks are registered against specific classes of goods and services under the Nice Classification system. If you register in the wrong classes, your registration may not cover your actual business activity, leaving you exposed where it matters. Some practical examples:
- A skincare brand may need coverage in class 3 (cosmetics) and class 35 (retail services)
- A technology platform may need class 42 (software services) and possibly class 35 if it offers business consulting
- A professional services firm needs the class that matches its service category
Getting the class selection right at the outset is much cheaper than trying to add classes later — and a registration that misses your core category is not worth the filing fee.
How long you've been using it and how consistently
Consistent, documented use of a slogan over time is the foundation of both ACL and passing off claims — and it also supports a trade mark application if the slogan needs to establish acquired distinctiveness. Sporadic or inconsistent use makes all three paths harder. If you change your tagline frequently, treating it as a throwaway marketing line rather than a brand asset, you will have very little to point to if a competitor adopts something similar.
Whether there's a third-party involvement angle
If the slogan was developed with an agency or freelancer, the first question is whether you own it. In Australia, copyright in creative work generally vests in the author — meaning an agency or freelancer who wrote the tagline may own the copyright in the expression, unless your contract assigns it to you. While copyright protection for a short phrase is limited, a clear ownership and IP assignment clause in your agency or service agreement removes ambiguity. If the concern is that a former contractor has reused your concept for a competitor, your confidentiality and non-use clauses become the relevant instrument.
Which path suits your situation
The decision between these paths tends to resolve along a few recognisable patterns:
| Your situation | Most practical primary path |
|---|---|
| Slogan is distinctive and central to your brand identity | Register as a trade mark (priority) |
| Slogan is descriptive but heavily used over years | Register (with use evidence) or ACL + passing off if registration is refused |
| Slogan is very descriptive or generic | ACL / passing off only, or reconsider the tagline |
| Competitor has just started using something similar | Registered trade mark if you have one; ACL / passing off with evidence of reputation |
| Former contractor reused your concept | Contract + IP assignment clause; combine with trade mark if available |
| You haven't launched yet | Register first, before the competitor can |
Typical profile — register a trade mark as first step:
- Your slogan is coined or distinctive (not a phrase every competitor would naturally use)
- You use it consistently as a brand identifier, not a one-off campaign line
- You have, or are building, a reasonable market presence
- You want the clearest platform to act if someone copies you
Typical profile — rely on ACL / passing off:
- You have an established business with strong market recognition
- Registration was refused or the phrase is too descriptive to register
- There is clear, documented confusion in the market
One useful test: ask whether a reasonable consumer, seeing a competitor's slogan, would assume the two businesses are connected. If the answer is yes and you can back it up with evidence, ACL and passing off have real teeth. If the answer is speculative, registration is far more valuable.
Where Artificer Legal can help
The decision between these paths involves legal and commercial judgement that is hard to apply accurately without knowing the specific facts of your business. Artificer Legal practitioners can help you:
- Assess whether your slogan is registrable and what evidence would support an application if distinctiveness is an issue
- Select the correct trade mark classes so that your registration actually protects your business activity
- Review your agency and contractor agreements to confirm IP ownership and identify gaps
- Advise on the strength of an ACL or passing off claim based on your evidence of reputation and market confusion
- Draft a cease-and-desist letter that accurately reflects your rights without overstating them — an important detail, because making unjustified threats of trade mark infringement proceedings can itself create legal exposure under s 129 of the Trade Marks Act 1995 (Cth)
- Advise on negotiated outcomes where outright litigation is disproportionate to the commercial stakes
If you have already found a competitor using your slogan, early advice on the strength and priority of your rights will determine whether you can act decisively or need to manage the situation more carefully.
Whether you treated the slogan as a brand asset
The single thing that most often determines whether you can protect your slogan is whether you treated it as a brand asset before the problem arose. Businesses that registered their trade mark, or at least used the slogan consistently and kept evidence of that use, have real leverage when a competitor copies them. Businesses that used it sporadically, never registered, and have no documentation of use are largely starting from zero — and often find that the slogan is too descriptive to register by the time they try.
To summarise: registered trade mark protection under the Trade Marks Act 1995 (Cth) is the strongest and most enforceable form of slogan protection for most Australian businesses, provided the slogan is sufficiently distinctive. Where registration is unavailable or insufficient, s 18 of the ACL and the common law action of passing off can fill the gap — but both depend on demonstrable market reputation and evidence of actual or likely confusion. Contract protections are essential where third parties were involved in developing the slogan. Regardless of which path applies, consistent use, careful class selection, and documented evidence of how and when the slogan has been used are what turn a legal right into something you can actually enforce.