What Eminem's Trade Mark Loss Teaches Australian Business Owners
A global rap star just lost part of a trade mark fight to a small Australian beach brand, and the reason...
What Eminem's Trade Mark Loss Teaches Australian Business Owners
IP Wealth Insights · 27 July 2026 · 5 minute read · General information only, not legal advice
A global rap star just lost part of a trade mark fight to a small Australian beach brand, and the reason has nothing to do with fame. It comes down to one plain rule every business owner registering a trade mark in Australia needs to understand: if you are not using it, you can lose it.
On 1 July 2026 the Australian Registrar of Trade Marks ruled against Eminem (Marshall B. Mathers III) in one part of his long running dispute with Gold Coast beach brand Swim Shady. The delegate found that Eminem's "Shady" and "Shady Limited" trade marks had not actually been used in Australia on clothing, footwear, headwear, bags or leather goods during the relevant period, despite evidence that included tour merchandise, website sales figures and social media posts. From 1 August 2026, those marks lose protection for those goods in Australia, and Eminem has been ordered to cover Swim Shady's legal costs.
It is a genuinely useful case study, not because it involves a celebrity, but because it shows exactly how Australia's "non-use" rules work in practice, and how easily a business can be caught out by them.
The rule behind the headline, use it or lose it
Under the Trade Marks Act 1995 (Cth), a registered trade mark can be removed, in whole or in part, if it has not been genuinely used in Australia for a continuous period of three years or more. This is often called a non-use application, and anyone, including a competitor, can bring one.
The key word is genuine. Simply holding a registration, or using a mark overseas, or using it for a different category of goods, is not enough. In the Eminem case, the delegate looked closely at who was actually using the mark in Australia, on what products, and during what window of time, and found the evidence did not stack up for the specific goods in question.
What counts as genuine use
- Sales of the actual goods or services covered by the registration, to real customers, in Australia.
- Use by the registered owner, or someone with their authority, such as a licensee acting under their control.
- Use that is more than token, a single sample sale or a promotional giveaway is unlikely to be enough on its own.
- Records that can prove the above, invoices, dated sales data, shipping records and clear marketing material.
Why this matters to your business
Many Australian businesses register a trade mark across a broad range of classes and goods when they first launch, then narrow their actual product range over time as the business evolves. If part of your registration is no longer reflected in what you sell, that part is potentially vulnerable to a non-use challenge from a competitor, even years after the original filing.
Three practical takeaways for Australian business owners
Match your registration to your real business
Review what classes and goods your trade mark actually covers, and compare that against what you currently sell. If there is a gap, either start genuinely using the mark for those goods, or consider whether that part of the registration still serves a purpose.
Keep your evidence organised as you go
Do not wait for a challenge to start looking for proof of use. Keep dated invoices, sales reports and marketing material filed by product category, so that if a non-use application ever lands, you can respond quickly and clearly. A trade mark monitoring service can also help by flagging opposition and non-use activity against your marks early, so you are never caught off guard.
Understand who is doing the "using"
If a related company, distributor or licensee is the one actually selling your branded goods in Australia, make sure that arrangement is documented and that you, as the trade mark owner, retain quality control. Use by an uncontrolled third party may not count as use by you.
The bigger picture
Trade mark registration is not a "set and forget" exercise. A registration is a strong asset, but only for the goods and services you can show you are genuinely using it for. Building that discipline in early, reviewing your coverage periodically, and keeping simple use records, is far cheaper than defending a non-use application after the fact.
Frequently asked questions
Can my trade mark really be cancelled if I stop using it?
Yes, for the specific goods or services affected. In Australia, a trade mark can be subject to removal for non-use if it has not been genuinely used for a continuous period of three years or more, and anyone can apply to remove it on that basis.
Does overseas use protect my Australian trade mark?
Generally, no. Australian trade mark protection depends on genuine use of the mark in Australia for the relevant goods or services, not on use in other countries.
What should I do if I receive a non-use application against my trade mark?
Act quickly and gather your evidence of use, including dated sales records and marketing material. There are strict timeframes for responding, so it is worth getting advice as soon as you receive a notice.
Not sure your trade mark coverage matches your business?
We can review your existing registrations, flag any non-use risk, and help you keep your evidence in order.
Talk to IP WealthThis article is general information only and does not constitute legal advice. It is based on publicly reported facts as at the date of publication and may not reflect later developments, including any appeal. For advice about your specific circumstances, please contact IP Wealth.
