Be proactive in managing your brands, especially when entering and operating in new markets, even if online. Be quick to identify and avoid or address potential conflicts as the expense and time needed to fix will increase over time.

Some key insights from the recent Australian Consumer Law case: Jacksons Drawing Supplies Pty Ltd v Jackson’s Art Supplies Ltd [2025] FCA 530

When entering a new country conduct searches and check and choose your brand carefully. The court found that the similarity between “Jacksons” / “Jacksons Drawing Supplies” (JDS) and “Jackson’s” / “Jackson’s Art” / “Jackson’s Art Supplies” (JAS) was obvious and a significant factor in the potential for consumer confusion.

Reputation in a new country from your online presence is great, but it also creates liability under local consumer law. Even small amounts of sales, over a sustained period will be enough to do this. Website features that are targeted to a particular country can contribute to misleading conduct if consumers mistake who you are by assuming your business is from that country. (Local domain names, use of local currency, local contact details can all contribute to this.) But they are only a problem when your brand is similar to a pre-established brand in that country. (So, again, do the search and check first, and file a trade mark application as well.)

Consumer Protection focuses on the effect of your conduct, not whether you intended to be misleading. The relevant consumers include a range of individuals with varying levels of knowledge and sophistication regarding the market and businesses within it. You should not assume that consumers will engage in detailed analysis of your website or marketing materials, or that they are aware of subtle differences in branding or business models.

You can use statements to counter potentially misleading representations – but make them prominent. Don’t bury them in the footer or elsewhere on the site.

If you delay in enforcing your rights, you may not obtain the remedies you would otherwise deserve. Actively manage your brands, monitor for infringements and be proactive about resolving them. You may not be able to fully stop the infringer (ie obtain a complete injunction) if you wait too long. Time and a greater reputation by the infringer hurt you commercially but will also hurt your chances of getting an injunction. Being unaware of the existence of the infringer may not be enough if the court decides that you could have easily discovered their conduct, for example from a simple web search.

Surprisingly, evidence that actual consumers were confused is not always required in such cases. However, it will make a difference to your case, particularly if the misled consumers are also called as witnesses.