The Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 (“Bill”) amends the Commerce (Trade Descriptions) Act 1905 (Cth) (“CTD Act”) and the Customs Regulation 2015[1] (“Customs Regulation”) and seeks to strengthen Australia’s response to the importation of counterfeit goods. The Bill was introduced into the House of Representatives on 25 March 2026 and subsequently passed Parliament, receiving Royal Assent on 20 May 2026[2].
According to the Explanatory Memorandum, the purpose of these amendments is to strengthen enforcement against the importation of counterfeit goods by:
- Creating a new strict liability offence under the CTD Act for importing goods that bear false trade marks (being an offence which imposes liability without the need for the prosecution to prove fault). The new provisions provide that a person can be punishable by a maximum penalty of 60 units[3]. At the time that the Explanatory Memorandum was prepared, one penalty unit was equal to $330 AUD[4] and so 60 penalty units was $19, 800. A body corporate however can be subject to a maximum pecuniary penalty of an amount 5 times higher[5] (being 300 penalty units- $99,000). For offences committed on or after 1 July 2026 however, one penalty unit is currently equal to $364 instead; and
- Including the new offence in the Customs Infringement Notice Scheme, by amendment of the Customs Regulation, allowing the Comptroller-General of Customs and delegates in the Australian Border Force (“ABF”) to issue infringement notices as an alternative to prosecution for the offence[6].
The Explanatory Memorandum states that the the policy objective behind these amendments is as follows:
“The purpose of the amendments is to make counterfeit importers’ business model unprofitable, because the value of the seized goods, together with the amount of a penalty specified in an infringement notice, may exceed the profits realised from the consignments of infringing goods that escape detection.”[7]
The protection of intellectual property rights from the importation of counterfeit goods is regulated through legislation such as the CTD Act (which includes certain labelling requirements with respect to goods imported into Australia), the Trade Marks Act 1995 (“TM Act”) and the Copyright Act 1968 (“CA Act”) (both of which contain provisions dealing with importations of goods infringing intellectual property rights). For instance, under the TM Act a registered trade mark owner may give a notice in writing to the Comptroller- General of Customs objecting to the importation of goods that infringe its trade mark (“Notice of Objection”)[8] (similar provisions apply under the CA Act with respect to the rights of copyright owners), and the Comptroller- General of Customs may seize imported goods that infringe such intellectual property rights[9]. A Notice of Objection is valid for a period of 4 years, unless revoked[10]. The registered trade mark owner may also bring court proceedings for infringement of their intellectual property rights.
The Explanatory Memorandum further states as follows:
“The intellectual property rights holder remains responsible for any subsequent legal action against the importer under civil prosecution. Once the ABF refers the matter to the intellectual property rights holder, it no longer has authority to take action against the importer.
In the majority of cases where counterfeit and pirated goods are seized, the importer forfeits or abandons the goods. When this occurs, the Commonwealth is unable to pursue the importer through fines or prosecution. The only consequence to the importer is the financial loss of the value of the seized counterfeit goods. Access to the customs infringement notice scheme adds an added financial deterrent against the importation of counterfeit goods.”[11]
Accordingly, these amendments do not seek to alter or change the existing Notice of Objection process, rather they aim to complement the existing framework[12].
If you have any queries in relation to the above or the protection of your intellectual property rights including the lodgement of a Notice of Objection, then please contact Felicity Cara-Carson of our office.
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[1] Explanatory Memorandum to the Customs Legislation Amendment (False Trade Marks Infringement Notices)
Bill 2026, page 1.
[2] https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7452 ;
The commencement date is specified to be the earlier of a proclaimed date or, failing that, within 6 months
beginning on the date of Royal Assent, commencing on the day after the end of that period.
[3] Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026; Section 4AA Crimes Act 1914 (Cth).
[4] Section 4AA Crimes Act 1914 (Cth)
[5] Section 4B(3) Crimes Act 1914 (Cth)
[6] Explanatory Memorandum to the Customs Legislation Amendment (False Trade Marks Infringement Notices)
Bill 2026, page 1.
[7] Explanatory Memorandum to the Customs Legislation Amendment (False Trade Marks Infringement Notices)
Bill 2026, page 4.
[8] Section 132 Trade Marks Act 1995 (Cth)
[9] Section 133 Trade Marks Act 1995 (Cth)
[10] Section 32 Trade Marks Act 1995 (Cth)
[11] Explanatory Memorandum to the Customs Legislation Amendment (False Trade Marks Infringement Notices)
Bill 2026, page 3.
[12] Ibid.
Author:
Felicity Cara-Carson
Pointon Partners
https://pointonpartners.com.au/
Felicity.Cara-Carson@pointonpartners.com.au
+61 (03) 8625 8926
