If you run a business website in Australia and want to display another company's logo on it, the starting position is simple: you need that company's permission. Logos are protected by more than one layer of Australian law, and unauthorised use can expose your business to infringement claims, consumer law penalties and takedown demands, even when your intentions are good. This article sets out what the law requires of you before you publish, when the narrow exceptions apply, and how to get permission properly.
The obligations that matter here are threefold. You must not reproduce another company's logo without its owner's permission or a recognised exception, you must not use a registered trade mark as a trade mark in connection with your own goods or services, and you must not use a logo in a way that misleads consumers about your relationship with its owner. None of these obligations depends on the size of your business. Here is what each one means in practice.
Who these obligations apply to
The rules apply to any person or business that reproduces a logo or uses it in trade or commerce in Australia. There is no turnover threshold, headcount test or minimum audience. A sole trader's one-page site and a national retailer's homepage attract the same exposure, and the law applies whether the logo appears on a website, in an email campaign, on social media, on packaging or in a mobile app.
You should treat the obligation as triggered whenever you answer yes to any of these questions:
- Reproduction: Are you copying or saving another company's logo image, or a version of it, onto your website or marketing material? Copying engages copyright.
- Trade mark use: Are you using the logo to promote or identify your own goods or services, or in a way that suggests they come from or are connected to the logo's owner? That engages trade mark law.
- Implying a connection: Will a reasonable visitor assume your business is affiliated with, endorsed by, or partnered with the logo's owner? That engages consumer law.
If your use involves any of these, the onus is on you to establish permission or a recognised exception before you publish, not after the owner's lawyer writes to you.
Why logos are protected: the three layers of law
A single logo can be protected at the same time by copyright, by a registered trade mark and by consumer law. Each layer creates a separate obligation, and satisfying one does not satisfy the others.
Copyright
Under the Copyright Act 1968 (Cth), a company logo is protected as an artistic work. Copyright arises automatically when the logo is created, there is no registration system and no © symbol is required for protection. In AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625, the Federal Court treated AGL's logo as an artistic work in which copyright subsisted, and the parties agreed that a substantial part of it had been copied.
Putting a logo on your website means reproducing the work online, which is an act reserved to the copyright owner. The test for infringement is whether you have reproduced the whole work or a substantial part of it. Under s 14 of the Act, doing an act in relation to a substantial part is treated as doing it in relation to the whole work, and substantiality is a question of quality, not quantity. There is no 10 per cent rule in Australian copyright law: taking the most recognisable element of a logo, however small, can be an infringement even if the rest is your own design.
Trade marks
A logo may also be registered as a trade mark under the Trade Marks Act 1995 (Cth), giving its owner the exclusive right to use it as a trade mark for the goods or services covered by the registration. Registration is obtained through IP Australia, and you can search the Australian Trade Marks Register to check whether a particular logo is registered and what it covers.
The infringement provision, s 120, is more limited than copyright in one important way: it only bites where the sign is used as a trade mark. A person infringes a registered trade mark if they use, as a trade mark, a sign substantially identical with or deceptively similar to the mark, in relation to the goods or services for which it is registered. Infringement also extends to goods or services of the same description, or closely related goods or services, where the use is likely to deceive or cause confusion, and to well-known marks used on unrelated goods or services where a connection would be assumed and the owner's interests would be adversely affected.
The ® symbol is reserved for registered trade marks, and the ™ symbol is commonly used to claim trade mark rights whether or not the mark is registered. Neither symbol is required for protection. If a mark is not registered, its owner may still be able to act against your use through the common law action of passing off, which protects a business's goodwill against misrepresentation by another trader.
Consumer law
The third layer is consumer protection. Schedule 2 of the Competition and Consumer Act 2010 (Cth) contains the Australian Consumer Law (ACL). Section 18 prohibits conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive. If displaying another company's logo on your website leads customers to think your business is affiliated with, approved by or sponsored by that company, your conduct can breach s 18 even if no trade mark or copyright infringement is made out. Section 29 separately prohibits false or misleading representations that goods or services have sponsorship, approval or affiliation.
A disclaimer saying "not affiliated with" does not automatically cure a misleading impression, and a court looks at the overall impression created by the page, not just the fine print.
When you can use a logo without permission
Permission is not always required, but the exceptions are narrow and fact-specific.
Fair dealing under copyright
The Copyright Act 1968 (Cth) allows fair dealing with an artistic work for a closed list of purposes without the owner's permission. The purposes most relevant to logo use are criticism or review, parody or satire, and reporting the news. Each has conditions: criticism or review and print news reporting require a sufficient acknowledgement of the work, and the dealing must be fair in all the circumstances, which generally means using no more of the work than the purpose requires.
The AGL and Greenpeace case shows how finely balanced these defences are. Greenpeace modified AGL's logo for a campaign criticising AGL's climate record. AGL sued for trade mark and copyright infringement. The trade mark claim failed because Greenpeace was not using the modified logo as a trade mark: it was not using the sign to indicate the origin of goods or services. On copyright, the court found that some of the uses were fair dealing for the purpose of parody or satire or criticism or review, but infringement was established in respect of other uses of the same campaign. The same logo, used slightly differently in different media, produced different outcomes. That is a warning that you cannot assume a critique or parody of a brand gives you blanket permission to reproduce its logo.
Descriptive and comparative trade mark use
Under s 122 of the Trade Marks Act 1995 (Cth), a registered trade mark is not infringed by certain good faith uses, including using a sign to indicate the kind, quality or intended purpose of your goods or services, such as saying that your product is compatible with or a spare part for another brand, and using the mark for comparative advertising. These defences only apply where the use is honest and in good faith.
Attribution is not permission
Crediting the logo's owner, adding a "trademarks belong to their respective owners" footer, or linking to the owner's site does not amount to permission. If the use does not fall within a recognised exception, only the owner's consent will protect you.
Getting permission: the licence you need
Where your use requires permission, the correct approach is a written licence from the owner. Because copyright and trade mark ownership can be held by different parties, first identify who actually owns the rights. The registered owner of a trade mark appears on the Trade Marks Register, but copyright in the logo may belong to the designer or agency that created it, unless it was assigned to the company.
A licence should be in writing and should cover at least the following:
- Scope: exactly where the logo may appear, such as your homepage, a specific landing page, or marketing emails, and what the logo may be used to promote.
- Duration and territory: how long the licence lasts, whether it renews, and where in the world you may use the logo.
- Depiction rules: whether you may alter the logo, what colours and sizes are permitted, and any required white space or positioning.
- Approvals: whether each placement needs the owner's sign-off before publication.
- Attribution: any credit lines or statements you must include.
- Termination: what happens to your right to use the logo if the licence ends or if the underlying business arrangement, such as a distribution or franchise agreement, comes to an end.
- Sub-licensing: whether your contractors, such as your web designer or marketing agency, may reproduce the logo on your behalf.
If you are acquiring the logo and brand outright rather than licensing them, you need an assignment of the trade mark and any copyright, documented in writing. Trade mark assignments should also be recorded with IP Australia, and a lawyer should review the assignment to make sure the copyright in the logo design is transferred as well.
If you run a marketplace or a reseller operation, the right to use suppliers' logos should be addressed in your terms and conditions or supply agreements, rather than assumed from the commercial relationship. Being an authorised reseller of a brand does not, by itself, entitle you to display the brand's logo on your own website in any manner you choose.
What happens if you use a logo without permission
The consequences of unauthorised logo use fall into three categories.
Trade mark remedies and offences
A registered trade mark owner can sue for infringement and seek injunctions to stop the use, damages or an account of profits, and additional damages for flagrant infringement. Separately, s 146 of the Trade Marks Act 1995 (Cth) makes it an indictable offence to falsely apply a registered trade mark to goods or services in the course of trade without the owner's permission, punishable by up to five years' imprisonment or 550 penalty units. Even before court, an owner will typically send a cease and desist letter demanding removal, and a hosting provider or payment processor may act on a complaint.
Copyright remedies
Copyright owners can seek injunctions, damages, an account of profits and additional damages under the Copyright Act 1968 (Cth). In the AGL and Greenpeace case, the court held that AGL was entitled to additional damages in respect of the infringing uses. Copyright infringement can also attract criminal liability where it is committed knowingly and on a commercial scale.
Consumer law exposure
A contravention of s 29 of the ACL, such as a false representation of sponsorship or affiliation, can attract a pecuniary penalty. Under s 224 of the ACL, the maximum penalty for a body corporate is the greater of $100 million, three times the benefit obtained from the contravention, or 30 per cent of adjusted turnover during the breach period. For an individual the maximum is $2.5 million. Section 18 conduct does not carry a pecuniary penalty but can be met with injunctions, damages and other remedial orders. Beyond the legal exposure, a public dispute over a logo can damage your reputation with customers and with the very business whose logo you used.
A compliance checklist before you publish
Before any logo goes on your website, work through this checklist:
- Search the register: Check the Australian Trade Marks Register for the logo and note the registered owner and the goods and services covered.
- Identify the copyright owner: Confirm who created the logo and who holds the copyright, which may differ from the trade mark owner.
- Classify your use: Decide whether your use is reproduction, trade mark use, or a use implying affiliation, because each is governed by different rules.
- Consider the exceptions: If you are reporting news, reviewing or criticising, or using the mark descriptively or for comparison, check that you meet the conditions of the relevant exception, including sufficient acknowledgement.
- Get it in writing: If your use needs permission, obtain a written licence before publishing, not after.
- Stay in scope: Once licensed, comply strictly with the terms, including depiction rules and approval requirements, and treat the licence as expiring when the underlying arrangement ends.
- Avoid the affiliation implication: Review the page as a visitor would and consider whether the logo suggests a connection that does not exist.
When you should get legal help
A lawyer is most useful at three points in this process. First, before publication, for a clearance check: a trade mark search and an assessment of whether your proposed use is descriptive, comparative, or a fair dealing, which is often a fine judgment call. Second, when negotiating a licence or assignment, because the terms that protect you, such as duration, scope, termination and the treatment of copyright, are the clauses that matter most when the relationship sours. Third, when you receive a demand letter or complaint, where an early, informed response can stop a dispute escalating, and where the distinction between trade mark use and non-trade-mark use, or between fair dealing and infringement, will decide the outcome.
The permission step most businesses skip
The duty most often missed is not the obvious one. Most businesses know they should not copy a logo wholesale, and most know they need a licence to use one as their own branding. What catches businesses out is the middle ground: using another company's logo with good intentions, to promote the owner's brand, to show they stock the owner's products, or to signal a partnership that has not been documented. Those uses still reproduce a copyright work, still engage the registered trade mark, and still risk implying an affiliation. Attribution, goodwill and commercial relationships do not amount to permission.
Before you publish, the first action is to search the Trade Marks Register, identify who owns the logo and its copyright, and ask for written permission if your use falls outside the narrow exceptions. If the owner says no, or does not respond, the answer is to not use the logo, even if the use would have benefited both of you. A logo you are not licensed to use is the one element of your website that a single letter from a lawyer can force you to remove overnight.