Counterfeit goods are a persistent and growing risk for brand owners in Australia. Infringing products can enter the market quickly and at scale, undermining both brand reputation and revenue.

This alert provides an overview of the Australian Border Force (ABF) Notice of Objection Scheme and examines the impact of the Customs Legislation Amendment (False Trade Marks Infringement Notices) Act 2026 (Cth). These developments offer registered trade mark owners a more robust enforcement framework to combat counterfeit imports.

The Notice of Objection Scheme

The Notice of Objection Scheme is the primary mechanism for preventing the importation of counterfeit goods at the Australian border. It operates under the Trade Marks Act 1995 (Cth) and is administered by the ABF.

A Notice of Objection is a formal legal instrument that authorises the ABF to detain and seize goods that appear to infringe a registered trade mark before they enter the country. Importantly, it can only be lodged by a registered trade mark owner or authorised user, and applies to goods imported for trade.

Without a valid Notice of Objection, the ABF is generally unable to take enforcement action even where goods appear suspicious.

Key features of the scheme

The Scheme is relatively straightforward in operation, but several features are critical to its effective implementation:

• the Notice of Objection must relate to a registered trade mark and must be lodged in the prescribed form;
• once lodged, the Notice of Objection will remain valid for four years¹ and can be re-lodged to ensure ongoing protection; and
• the registered trade mark rights holder must provide a deed of undertaking to cover potential costs associated with seizure, storage and destruction of goods.²
  Once a Notice of Objection is active, the ABF may detain goods that appear to be counterfeit.

The importer is then given a short period to claim the goods. If a claim is made, the registered trade mark rights holder has 10 working days to commence legal proceedings.³

The scheme in practice

In the 2024–25 financial year, the ABF reportedly seized more than 700,000 counterfeit items at the border, which would have been worth over $35 million had they been genuine.

For example, in 2020, the ABF seized a consignment of more than 500 counterfeit Rubik’s Cube toys. The cubes were imported by sea from Hong Kong to Fremantle and infringed registered trade mark rights protecting Rubik’s Cube. The cubes were ultimately forfeited by the importer and disposed of.

Similarly, ABF officers seized 493 counterfeit sunglasses during an x-ray baggage examination in 2023. The sunglasses infringed a range of luxury brands’ registered trade mark rights, including Gucci, Chanel, Prada, and Dior.

Limitations of the pre-2026 regime

While the Notice of Objection Scheme has been widely used, it has not always provided sufficient deterrence on its own.

In practice, many importers of counterfeit goods faced few consequences beyond forfeiting the seized goods. For some operators, particularly those dealing in high-volume, low-cost imports, forfeiture could be treated as a manageable cost of doing business.

From a brand owner perspective, further enforcement (where the goods were not forfeited and destroyed) required commencing civil proceedings, which can be costly and time-consuming. This often meant that only the most serious or repeat cases were pursued to judgment.

The 2026 reforms

The Customs Legislation Amendment (False Trade Marks Infringement Notices) Act 2026 (Cth) introduces a new enforcement layer that sits between seizure and prosecution.

Key elements of the new regime

The legislation makes two significant changes.

First, it creates a strict liability offence for importing goods bearing false trade marks.⁴ This means that liability can arise based on the act of importation itself, without the need to prove intent or knowledge.

Second, it brings that strict liability offence within the Customs Infringement Notice Scheme.⁵ This allows the ABF to issue infringement notices that impose financial penalties on infringing importers, without requiring the involvement of the brand owner. Infringement notices can be issued frequently and at scale.

These reforms represent a clear shift towards direct enforcement by authorities rather than relying solely on private litigation.

Why this matters for brand owners

The combined effect of the Notice of Objection Scheme and the 2026 reforms is a more balanced and effective enforcement framework.

The introduction of financial penalties is likely to have a significant deterrent effect. Importers can no longer assume that the only consequence of being detected is the loss of goods.

For example, an importer dealing in counterfeit electronics may previously have accepted occasional seizures as part of operational risk. Under the new regime, repeated infringement would result in cumulative penalties that materially impact profitability.

The ABF also now plays a more active enforcement role. It is no longer limited to seizure and facilitation of private action. The ability to issue infringement notices strengthens its position as a frontline regulator.

Continued importance of proactive engagement

The Notice of Objection remains the primary mechanism to border enforcement. Without it, the ABF cannot generally act against suspected infringing goods.

Brand owners should ensure that:

• trade marks are registered;
• Notices of Objection are lodged and regularly re-lodged; and
• the ABF is provided with relevant product identification information.

These steps remain critical to triggering the protection regime. Brands should also consider supply chain monitoring and targeted litigation where necessary.

Next steps

Australia’s approach to counterfeit imports is entering a new phase. The Notice of Objection Scheme continues to provide an efficient mechanism for intercepting infringing goods at the border. The 2026 legislative reforms enhance that framework by introducing direct financial consequences for importers.

Proactive engagement with border protection mechanisms is essential, and the benefits of doing so have increased. A Notice of Objection, combined with an informed enforcement strategy, will play a central role in protecting brand integrity and commercial value in an increasingly complex global marketplace.

HWL Ebsworth’s intellectual property team has extensive experience in advising businesses regarding counterfeit products. If you are concerned about counterfeit products, please contact us for further information on how we can assist you.

This article was written by Luke Dale, Partner, and Jasper Dowdell, Graduate. 

¹Trade Marks Act 1995 (Cth) s 132(4).
²Ibid s 133(3).
³Trade Marks Regulations 1995 (Cth) reg 13.2.
⁴Customs Legislation Amendment (False Trade Marks Infringement Notices) Act 2026 (Cth) sch 1 cl 2.
⁵Ibid sch 1 cl 5.