Bad Faith Trade Mark Squatting in Australia: What the 2026 ATMO Decisions Mean for Your Brand

If your brand is popular enough to attract customers in Australia, it is popular enough for someone else to register it here first, legally, and get away with it, unless you can prove they didn't act honestly.

That is the practical lesson from three Australian Trade Marks Office decisions handed down in 2026. Each one involved an overseas seller who had built a genuine business under an invented brand name, only to discover that someone else had already applied to register that same name in Australia. In each case, the applicant lost, but only because the brand owner could show a pattern in the applicant's much wider filing history, not because of anything specific to the disputed application itself.

What actually happened

In Glittery Craft Limited v Xiang Chen [2026] ATMO 8, Hong Chen v chenfei yao [2026] ATMO 131, and Shenzhen Ailile Network Technology Co., Ltd v Xiaodan Zhang [2026] ATMO 138, the pattern was strikingly similar. An overseas business had been selling genuine products under a distinctive, invented brand name, through marketplaces such as Amazon, sometimes for years, before an unrelated applicant filed to register that exact name as an Australian trade mark.

In the PEASUR case, the applicant had filed 43 Australian trade mark applications. In the SCAIKTIG case, the number was 47. When the opponents looked past the single disputed mark to the rest of each applicant's portfolio, they found other distinctive, invented trade marks that also matched brands already being used by other unrelated overseas sellers, in the same or closely related product categories.

Neither applicant filed any evidence explaining the pattern. Under section 62A of the Trade Marks Act 1995 (Cth), which allows a mark to be opposed where the application was made in bad faith, the Trade Marks Office found that an unexplained pattern like this was enough to draw an inference of bad faith, even without any direct evidence of what the applicant intended.

Why the filing history matters

Direct evidence of bad faith is rare. Nobody files an affidavit admitting they copied someone else's brand on purpose. What these decisions confirm is that the trade mark register itself can supply the missing evidence, if you know where to look.

What a wider portfolio review can reveal

• Whether the disputed application is an isolated event or part of a broader pattern.
• Whether the applicant's other marks are descriptive, or unusual invented words that are harder to explain as coincidence.
• Whether those other marks correspond to brands already being used by unrelated overseas businesses.
• Whether the goods involved are the same as, or closely related to, the goods sold under the original brand.
• Whether there is any genuine commercial link between the applicant and the businesses whose brand names appear to match.

One overlapping name might have an innocent explanation. A series of unusual invented trade marks, each matching a different unrelated overseas brand, is much harder to explain away.

What this means if you sell online

If your business already has Australian customers through a marketplace, a website, or social media, even without a local office or distributor, Australia is no longer a market you can leave for "later." The traditional idea of a brand "entering Australia" only once it opens locally is increasingly out of step with how customers actually buy.

The practical advice is the same as it has always been: file early. But these decisions add a second, less obvious point. If you ever discover that someone else has applied to register your brand name here, don't stop at the single application. Look at the applicant's entire Australian filing history, their other trade marks, marketplace listings, and any public information about where those brand names came from. That wider picture can be exactly what turns a difficult opposition into a straightforward one.

What to do next

• If you sell into Australia and haven't registered your brand name here, treat it as current priority, not a future task.
• If you discover a conflicting Australian application for your brand, ask your attorney to review the applicant's full filing history before assuming the case is weak.
• If you hold a large trade mark portfolio yourself, keep a record of where each brand name came from, in case your own filing pattern is ever questioned.

Frequently asked questions

This article is general information only, and is not legal advice. It does not take into account your specific circumstances. For advice about your own brand and trade mark position, please contact IP Wealth directly.