In May 2026 the High Court of Australia settled a fight over a single word. Zip, the buy-now-pay-later company used by more than a million Australians, had traded as ZIP since 2013. So had Firstmac, a non-bank lender that registered ZIP as a trade mark for financial services in 2004 and used it on home loan products from 2005. Both companies wanted the name, and Firstmac had registered it first.
The High Court dismissed Zip’s appeal, upholding earlier findings that Zip had infringed Firstmac’s mark and could not make out the defence of honest concurrent. To keep trading under its own name in Australia, Zip bought the disputed mark from Firstmac. A company worth hundreds of millions paid for the right to keep calling itself what it had called itself for more than a decade.
It was also an avoidable fight. When Zip applied to register ZIP in 2013, IP Australia returned an adverse examination report naming Firstmac’s mark as a conflict. According to the judgment, a co-founder of Zip gave the report cursory attention, sought no legal advice, and launched the brand anyway. The conflict sat on the public record before the first customer used the product.
Lawyers who handle trade mark applications see versions of that decision regularly. At Lazarus Legal, a Sydney IP firm whose director ran brand enforcement for Monster Energy across Europe, the Middle East and Africa, responding to adverse reports is routine work. An adverse report asks the applicant to argue, within a statutory deadline, that the mark is distinctive enough or that earlier rights do not stand in the way, and the quality of that response usually decides whether the application proceeds.
A more basic misunderstanding sits underneath the case, and it catches smaller businesses even more often. Registering a business name with ASIC gives you no ownership of the name. It lets you trade under it and nothing more. It does not prevent someone else from registering the same words as a trade mark and using that registration to stop you using your own branding. Under Australian law a registered trade mark is the only thing that gives you an exclusive, enforceable right to a name or logo for the goods and services you sell.
The point the High Court settled was one of timing. Where two businesses have both used a name, the later user can sometimes defend an infringement claim by showing honest concurrent use. The court confirmed that honesty is judged at the time the mark is used, against the standard of ordinary, decent people, not by the size of the business built later. Zip’s revenue and customer numbers by 2019 said nothing about whether its adoption of the name in 2013 was honest. It had known about Firstmac’s mark and gone ahead regardless.
Most businesses are far worse placed to survive that result than Zip. Zip had in-house lawyers, a litigation budget, and the means to buy the mark once the case was lost. A café, a clothing label, or a trades business that finds out in its second year that someone else owns the name has none of that. What follows is rarely a courtroom; more often it is reprinted signage, repackaged stock, a new domain, and the slow loss of customers who search the old name and find someone else.
Set against that, the cost of checking first is minor. Trade marks are registered against specific classes of goods and services, and IP Australia’s filing fees start in the low hundreds of dollars per class. A clearance search across the trade marks register and the broader market, run before launch, shows whether a name is safe to build on. Zip’s costs came from skipping that step.
The decision is among the most significant Australian trade mark rulings in years, and it followed another two months earlier. In Taylor v Killer Queen LLC, a Sydney designer who trades as Katie Perry kept her registered clothing mark against a challenge backed by the pop star Katy Perry, because the singer’s reputation sat in music and entertainment rather than clothing. The thread running through both cases is the same. Rights follow what is on the register for the goods and services that matter, and a reputation built over the top of someone else’s registration does not decide who the law protects.
If you are settling on a name, or you have found someone else already using yours, the question worth answering now is whether the brand is legally yours to build on.
