In brief
The Australian Border Force (ABF) administers the Notice of Objection Scheme – a long-standing border enforcement framework that enables registered owners of trade marks (and copyright holders) to have suspected counterfeit goods detained at the Australian border. Until recently, the practical consequence for importers of counterfeit goods who were caught was generally limited to forfeiture of the goods, with any further enforcement requiring the rights holder to fund civil proceedings against the importer.
The passage of the Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 has now changed this position. This bill amends the Commerce (Trade Descriptions) Act 1905 and the Customs Regulation 2015, effective from 20 November 2026. This introduces a strict liability criminal offence for importing goods bearing false trade marks and brings that offence within the existing Customs Infringement Notice Scheme, allowing the ABF to issue financial penalties directly to importers as an alternative to prosecution.
Trade mark owners, importers and supply chain operators should review their compliance and IP-protection arrangements in light of these changes.
In detail
The Notice of Objection Scheme is the primary border enforcement mechanism available to Australian intellectual property (IP) rights holders. It is established under Part 13 of the Trade Marks Act 1995 (Cth) (and equivalent provisions in the Copyright Act 1968 (Cth)) and is administered by the ABF.
Key features of the scheme include:
- Lodgment by rights holders – any registered owner of an Australian trade mark or copyright may lodge a Notice of Objection with the ABF in the prescribed form, accompanied by a Deed of Undertaking under which the objector agrees to repay costs (transportation, storage and destruction) arising from any seizures.
- Validity period – a Notice of Objection is valid for four years and may be renewed.
- Detention powers – once a Notice is in place, the ABF may detain imported goods suspected of infringing the registered trade mark or copyright.
- Notification process – on detention, the ABF notifies both the importer and the objector. The importer has 10 working days to claim the release of the goods, failing which the goods are deemed forfeited.
- Action period – if the importer claims release, the objector has 10 working days to either commence legal proceedings or consent to release. If no proceedings are commenced, the ABF must release the goods.
Historically, the scheme's principal limitation has been that, once goods were detained, the burden of pursuing further enforcement fell on the rights holder. Importers frequently chose simply to abandon (forfeit) seized consignments, with no further consequence, while continuing to rely on the profitability of consignments that escaped detection.
Scale of the issue
The case for legislative change was supported by the scale of counterfeit trade. According to a 2025 Organisation for Economic Co-operation and Development (OECD) and European Union Intellectual Property Office (EUIPO) joint report (titled Mapping Global Trade in Fakes 2025), counterfeit and pirated goods accounted for up to 2.3% of global trade in 2021 (approximately US$467 billion). In Australia, the value of counterfeit and pirated goods was estimated at A$4.98 billion in 2023–24, and the ABF reportedly seized over 700,000 individual counterfeit items at the border in the 2024–25 financial year (worth more than A$35 million if genuine).
What has changed – the 2026 amendments
The Customs Legislation Amendment (False Trade Marks Infringement Notices) Bill 2026 amends the Commerce (Trade Descriptions) Act 1905 (Cth) (CTD Act) and the Customs Regulation 2015 to:
- introduce a new strict liability offence for importing goods bearing false trade marks; and
- bring that offence within the Customs Infringement Notice Scheme, allowing the Comptroller-General of Customs (and ABF officers as delegates) to issue infringement notices as an alternative to prosecution.
Importantly, the amendments do not change the existing Notice of Objection lodgement process. Rather, they complement that framework by adding a financial deterrent at the point at which an importer would previously have simply walked away from forfeited goods.
New section 10AB of the CTD Act provides that a person commits an offence of strict liability if the person imports goods into Australia and any of the following applies:
- there is a registered trade mark on the goods;
- there is a mark or sign on the goods that is substantially identical to a registered trade mark; or
- a registered trade mark on the goods has been altered, defaced, added to, wholly or partly removed, erased or obliterated.
As a strict liability offence, the prosecution is not required to prove fault (intention, knowledge, recklessness or negligence) – only the physical elements of the offence. The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code remains available.
The penalty structure under the new regime is as follows (current Commonwealth penalty unit value as at the date of this article: $330):
| Pathway | Individual | Body corporate |
|---|---|---|
| Maximum penalty on prosecution (60 penalty units; 5x corporate multiplier) | $19,800 | $99,000 |
| Maximum penalty under an infringement notice (15 / 75 penalty units) | $4,950 | $24,750 |
The infringement notice pathway gives the ABF a faster, lower-cost enforcement option that does not require court proceedings, while preserving the option of full prosecution in more serious cases.
The new offence does not apply where:
- the registered trade mark, or mark or sign, was applied (or altered, removed etc.) with the permission of the registered owner or an authorised user of the trade mark (s 10AB(2)); or
- the application was required or authorised by the Trade Marks Act 1995, a direction of the Registrar, or an order of a court (s 10AB(3)).
In each case, the defendant bears the evidential burden of establishing the defence. Importers parallel-importing genuine goods in reliance on section 122A of the Trade Marks Act 1995 are not caught by the new offence.
The infringement notice power is intended to be exercised after the existing Notice of Objection process has run its course – typically at the point an importer forfeits or abandons seized goods. ABF officers retain a graduated and discretionary approach, with available responses ranging from no action, to a formal warning, to an infringement notice, to prosecution. Considerations such as first-time offending, genuine mistake of fact, the quantity of goods and community safety risks (e.g. counterfeit pharmaceuticals or electronics) will be relevant.
What comes next?
The amendments materially strengthen the enforcement options available to the ABF and, indirectly, to Australian trade mark holders. The intended effect is to disrupt the counterfeit importing practices such that the combined cost of seizure plus an infringement notice penalty exceeds the profits from consignments that escape detection.
Key practical implications:
- Trade mark owners should review whether they have a current Notice of Objection on file with the ABF for their key registered marks. Without a Notice of Objection, the ABF has no authority to detain suspected counterfeit goods and the new infringement notice regime cannot be triggered. Owners should also consider the cost-recovery obligations assumed under the accompanying Deed of Undertaking.
- Importers and distributors of branded goods should re-examine their supply chain due diligence, supplier warranties and authentication processes. Given the strict liability nature of the offence, an absence of intent will not, of itself, be a defence. Evidence of authorisation from the trade mark owner will be critical.
- Trade contracts and incoterms should be reviewed to ensure that risk of seizure, infringement notices and associated costs is clearly allocated between supplier, importer and customer.
- Compliance programs for consumer goods, electronics, pharmaceuticals, automotive parts, apparel and luxury goods (categories repeatedly flagged as high-risk by the OECD/EUIPO) should be prioritised.
The new regime materially increases enforcement risk for importers, while strengthening the position of trade mark owners at the border. PwC’s Global Trade team can assist with applying for a Notice of Objection, reviewing existing arrangements, supporting engagements with the ABF, and advising on responses to detention and infringement notice scenarios.
Contact us
Paul Cornick
Partner, National FTC and Excise Leader, PwC Australia
Gary Dutton
Partner, National Global Trade Leader, PwC Australia
Frances Ryan
Director, Global Trade and Excise, PwC Australia
Sarah Macchiavelli
Director, Global Trade and Excise, PwC Australia
Melissa Camilleri
Director, Global Trade and Excise, PwC Australia
Lara Jobling
Director, Global Trade and Excise, PwC Australia
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