Search before you launch: what the Zip v Firstmac saga means for your brand
One of Australia's best-known fintech brands spent years in court over its own name, lost in the High Court, and...
Search before you launch: what the Zip v Firstmac saga means for your brand
By IP Wealth · · 6 minute read
One of Australia's best-known fintech brands spent years in court over its own name, lost in the High Court, and then had to buy the rights it needed. The lesson for every business owner is simple: a trade mark search before you launch is now the most valuable few hundred dollars you will spend on your brand.
What happened in Zip v Firstmac?
Firstmac, a Queensland home loan provider, registered ZIP as a trade mark for financial services back in 2004. Zip Co later built a buy now, pay later business under the ZIP brand. Firstmac sued for trade mark infringement, and Zip argued that it had used its name honestly alongside Firstmac's, a defence known as honest concurrent use.
The courts disagreed. On 13 May 2026, the High Court of Australia unanimously dismissed Zip's appeal and confirmed that Zip could not show it had acted honestly at the relevant time. A key problem was that Zip kept using and expanding its ZIP branding after it knew there was an earlier registered mark in its way.
- 2004: Firstmac registers ZIP for financial services.
- Later years: Zip builds its brand, then faces an infringement claim from Firstmac.
- 13 May 2026: the High Court rules unanimously for Firstmac.
- 21 May 2026: Zip announces a settlement under which it acquires Firstmac's ZIP registration, so it can keep its name in Australia.
Zip kept its name, but at a price
Zip did not have to rebrand in the end. Eight days after the judgment, it told the ASX it had settled with Firstmac and would acquire Firstmac's registered ZIP trade mark. The terms are confidential.
That outcome is the real takeaway. Firstmac's early registration turned into serious bargaining power. For Zip, a search and a filing strategy at the start would almost certainly have cost far less than years of litigation followed by a buy-out. Most small and medium businesses don't have the resources to buy their way out of a naming problem. They rebrand, often after they have already paid for signage, packaging, a website and marketing.
Why this matters to your business now
The case didn't just settle one dispute. It changed how trade mark applications are examined in Australia.
IP Australia is asking about your search history
If your trade mark application clashes with an earlier mark, one way through is to show honest concurrent use. Following the High Court's decision, IP Australia has updated its examination manual so that examiners now consider questions like these:
- Were you aware of the conflicting trade mark?
- What enquiries did you make before you started using your brand?
- If you made no enquiries, why not, and would someone in your position have been expected to do more?
- If you knew about the other mark, why did you decide to go ahead?
In other words, your search history is now evidence. If you didn't search, or can't show why you reasonably believed there was no conflict, your application may be much harder to get over the line, even if nobody is suing you.
Honesty is an ongoing test
Honesty isn't just about the day you chose your name. If IP Australia raises an earlier mark in an examination report and you keep trading as if nothing happened, that can count against you. What you do next matters, whether that is seeking consent, challenging an unused mark or getting advice.
Your pre-launch brand checklist
- Search early, before you use the name and ideally before you invest in it. Search the trade marks register, business names, domains and the marketplace.
- Keep dated records of your searches, emails, file notes and any professional advice about the name.
- File promptly once you have a clear result, so nobody files a conflicting mark in the gap.
- Don't ignore an examination report. Deal with any objection properly and get advice before continuing to expand.
- Remember that a business name is not a trade mark. Registering with ASIC gives you no exclusive rights in the name.
What a proper brand clearance search covers
A quick online search or a look at the business names register is a start, but it won't show you the full risk. A professional clearance search looks at:
- The Australian Trade Mark Register, including similar-sounding and similar-looking marks, not just exact matches, in the classes that cover what you sell.
- ASIC business names, to see who else is trading under similar names.
- Domain names and online use, to check whether your name is available and whether someone is already using it without registering it.
- Distinctiveness, since a name that simply describes your product or service may be refused even when no one else owns it.
At IP Wealth, our Brand Clearance Report combines all of this into one clear, plain-English report with a recommendation on whether to proceed, what to change and which classes to file in.
Frequently asked questions
Do I really need a trade mark search if my business name is already registered?
Yes. Registering a business name with ASIC lets you trade under that name, but it gives you no exclusive rights in it and doesn't show whether someone else owns a trade mark for it. A trade mark search checks the register that actually determines who owns brand rights.
What is honest concurrent use?
It is a rule that can allow two similar trade marks to coexist where the later user adopted and used its mark honestly. After Zip v Firstmac, both courts and IP Australia expect evidence that you took reasonable steps, such as searching, before adopting your brand.
Did Zip have to change its name?
No. After losing in the High Court on 13 May 2026, Zip reached a settlement with Firstmac on 21 May 2026 and acquired Firstmac's ZIP registration, which allows it to keep using ZIP in Australia.
When should I search, and when should I file?
Search before you commit to a name, ideally before you spend money on logos, signage, packaging or a website. Once the search is clear, file your trade mark application as soon as possible so no one else gets in first.
Check your name before you launch
Our Brand Clearance Report tells you whether your proposed name is safe to use and register, before you spend a dollar on it.
Talk to IP Wealth Or call us on 1800 857 070This article is general information only and is not legal advice. It does not take into account your particular circumstances. For advice about your brand, please contact us. Sources include the High Court of Australia decision in Zip Co Limited v Firstmac Limited [2026] HCA 16, Zip Co Limited's ASX announcement of 21 May 2026 and the IP Australia Trade Marks Manual. © 2026 IP Wealth Pty Ltd. All rights reserved.
