endurily
certified partners

endurily™ Certified Partners

As agencies, freelancers and creatives complete certification, we will publish contact details so you can select from our accredited partners.

Only an Endurily Certified Partner may display our certification logo to promote their inclusion of trademark law into brand development programs.

Brand identity development has commercial risk. We can assist you.

Terms of Service Brand Clearance Report

Updated 11 January 2023 

ABOUT OUR SERVICES

Welcome to Endurily trademark clearance report services (the ‘Services’).

These General Terms and Conditions (“Terms”) govern your access and use of Endurily Services, as such term is defined below. “We”, “Our” , “Us” and “Endurily” means the Endurily trade mark and business unit as owned by Untapped Agency Pty Ltd (ABN 77149919199) entity or entities providing Services (therefore the entity or entities with all rights and obligations with respect to those Services). “You” and “your” means the client or customer agreeing to or accepting these terms.

We reserve the right to review and change any of the Terms by updating this page at its sole discretion. When we update the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

PLEASE READ THESE TERMS AND CONDITIONS (the ‘Terms’) CAREFULLY. By purchasing our Services, this signifies that you have read, understood and agree to be bound by the Terms.  If you do not agree with these Terms, you must not purchase our Services and cease using our website immediately.

1.  ACCEPTANCE OF TERMS

You accept the Terms by purchasing our Services. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Us in the user interface. By clicking on the “I have read and agree” you represent and warrant that You have read, understood and agree to be bound by these Terms.

2.  IP OWNERSHIP

We may refer to the product being the brand clearance trademark search report document (the ‘Report’).  When refer to both the Report and our Services combined, these comprise our Property (the ‘Property’).

The Services and the Report, the report content, and all related products of Endurily are subject to copyright.  The Report generated by the Services is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Report are owned or controlled for these purposes, and are reserved by Us or our contributing entities.

All trademarks, service marks and trade names are owned, registered and/or licensed by Untapped Agency Pty Ltd, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a client to:

  – use the Services and Report pursuant to the Terms;

  – print a copy of the Report for the purposes of sharing internally as a business document or with your client for whom you are engaged to develop a brand identity;

We do not grant you any other rights whatsoever in relation to the Services or Report.

We retain all rights, title and interest in the Services and Report and nothing you do in relation to the Services or Report will transfer any intellectual property rights to you.

You may not, without the prior written permission of Us and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the content or third-party content for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the website, which are freely available for re-use or are in the public domain.

You many not edit, cut, delete, omit, modify or make any changes to our Report.  It is to be presented in its entirety, whether as an internal business document or shared with your client. You may not remove our trade mark, branding elements or copyright registration.

You may not share the Report with any other third party who is not intended brand owner of brand identity for which the Services and Report have been purchased for or, in the case of an agency, freelancer, brand identity developer contractor, or consultant, you may not share the Report to any party that was not the intended brand owner.

3.  INTELLECTUAL PROPERTY RIGHTS ACCESS

Reservation of Rights.  Together with our licensors, we reserve all rights not expressly granted under the Agreement. Except for the limited rights and licenses expressly granted in this agreement, nothing in this Agreement grants or implies to you or any third party any intellectual property rights or other right, title or interest in or to our Property.  You acknowledge that, as between the parties, all intellectual property rights in our Property are owned by Us, our licensors or third party providers.  You will not remove or conceal any property rights notices in the Report and will include such notices on any copy you are permitted to make.

Services license. Subject to the terms and conditions of the Agreement, we hereby grant you a non-exclusive, non-sublicensable, non-transferable right to access, view and use our Services solely for our own internal business purposes.

Documentation license. Subject to the terms and conditions contained in the Agreement, where Report documentation is provided to you, We hereby grand you a non-exclusive, non-sublicensable, non-transferable license to use our Report solely for your internal business purposes and connection with your use of our Services. You are not allowed to cut, delete, omit, modify or make any changes to our Report.  You may not remove our trade mark, branding elements or copyright registration. We provide a single use, non-transferable, limited licence on the entire Report so that you may share the report with your client, if you have been engaged on their behalf for brand development.

Limited License to Your Data. You hereby grant us a non- exclusive license and right to use, copy, store, host, display, transmit and process Your Data solely as necessary for us, our employees and contractors to provide our Services under the Agreement and in accordance with applicable law. Your Data is the commercial, brand identity and business information that you provide to us in the course of engaging our services. We may delete or disable Your Data if required under applicable law, in which case we will use our reasonable efforts to provide notice to you. We acknowledge that, as between the parties, all intellectual property rights in Your Data are owned by you or your licensors.

Delivery. We will deliver our Services and any Report electronically, on tangible media, or by other means, in our sole discretion. When you receive via email, download or access our Services or Report, you are accepting it for use in accordance with the Agreement.

Ordered Report. When you purchase from Us, your Ordered Report identifies the Services, quantities, charges and other details of your order. The applicable Ordered Report may also refer to and incorporate documents which may apply to the Services or Report you selected. Each Ordered Report, any applicable incorporated documents and these Terms constitute the complete agreement and supersede any prior or discussions, agreements, representations or warranties regarding your order.

We comply with Australian Consumer Law and the following detail our services, goods and relationship with you:

4.  PURCHASE OF GOODS

You understand that you are purchasing a Report which will compare your proposed new brand name or brand logo that incorporates your brand name with all registered, pending and refused trade marks on the IP Australia trade mark data base. You are only purchasing one report for one brand name in words or one logo image that incorporates your brand name.

5.  PURCHASE AND REFUND

Payment is due on purchase as you can decide which of our Services you require.

As we provide professional services, you are entitled to a refund if we fail to supply you with your Report within the timeframe that you purchased for that Service. You are not entitled to a refund if you do not like the results of your Report.

You are not entitled to a refund if you apply for a trademark with IP Australia and are issued an adverse examination and the cited trademarks were not included in your Report from Us. The tests for determining whether two trade marks are likely to be confused are open to significant interpretation, and reasonable assumptions can differ. 

ACCESS TO SERVICES

6.  QUESTIONNAIRE

For Us to complete your Services, you will complete our questionnaire. You will supply your brand name in words or your brand logo that incorporates your brand name to us, and You are responsible for providing the commercial information as to the trademark and its context, (the “Brand Identity”) for the purpose of researching and compiling your Report. The purpose of the questionnaire is to detail how the brand will be used in the course of trade so we can utilise this information to deliver our trade mark attorney services to execute a trade mark register search and present as a document (the ‘Professional Services’).

7.  PROFESSIONAL SERVICES

A Trade Marks Attorney oversee your Report search and content compilation and list potential infringement discovered through identical, substantially identical, deceptively similar or confusingly similar comparative trademark research on the IP Australia trademark database.  This is executed on the brand identity details as supplied by you.

The search of IP Australia is conducted on the exact Brand Identity details provided to us.  As the search is contained to these exact Brand Identity elements, the search is a preliminary and limited search (the “Knock Out Search”). The Knock Out Search is executed to identify any obvious third-party registration that may be identical or nearly identical to your Brand Identity which is listed in your Report that may prevent you from moving forward with your Brand Identity.

8.  ORDERED REPORT SCOPE

The search is only valid for the exact Brand Identity you provided and the exact list of products and services you supplied. Depending upon the type of search requested, that is for your brand name or logo incorporating your brand name, the report may include trademark records from IP Australia which is the governing body for trade marks in Australia.

This report is designed to uncover trademark rights that have the potential to conflict with the proposed brand name or brand logo incorporating the brand name for the products and services you provide to us.

Key Limitations

Scope of search – The goods and services for which a trade mark can be registered are subdivided into 45 classes. Unless otherwise stated the on-line search is restricted to those classes containing goods and services which are identical to those for which your proposed trade mark is to be used.

Logo searches – Ultimately is impossible to take any search as being conclusive because of the problems with logo classification and perception, by the IP Office and the searcher concerned.  There are subjective interpretations as to the elements of a logo device and these can impact the search terms applied.

Highly subjective tests – the tests for determining whether two trade marks are likely to be confused are open to significant interpretation, and reasonable opinions can differ.

Unregistered marks – these are NOT searched in the process of researching and compiling your report.

Convention priority and increased use of Madrid Protocol – trade mark applications claiming convention priority and filed under the Madrid Protocol may not be immediately visible due to processing delays. These issues can take several months to resolve. The result is that an application may not appear on the Australian register until 6-12 months after its priority date. 

9.  THE REPORT

From the completion of our Services, we will compile the Report. This will be provided in a PDF format and sent to you to the email address you supplied. It will detail trademarks that may be identical, substantially identical, deceptively similar or confusingly similar to the brand identity details you supplied. 

10.  TRADEMARK COMMERCIAL RISK

Your Report will present trademarks from the IP Australia database that may be potentially identical, substantially identical, deceptively similar or confusingly similar to your supplied brand identity details.

You can then interpret the Report results and assign your level of commercial risk to the information provided.  We emphasise that determining commercial risk of infringement is high subjective. The tests for determining whether two trade marks are likely to be confused are open to significant interpretation, and reasonable opinions can differ. 

“Commercial Risk” means the chances that a You or Your client determines it will undertake when deciding to continue development of a brand identity, or abandon a brand identity, after the presentation of the Endurily Report, which may result in economic loss, whether pure of or consequential, as it may include possible immediate or future trademark infringement, financial loss and reputational loss. 

11.  LIMITATIONS, NO WARRANTIES

We have taken reasonable steps to ensure that the Report includes complete and accurate information.  The search is based on the exact brand name or logo and the commercial use of the brand identity in the market. The list of comparative elements used by our Trade Marks Attorney to provide the Services for determining whether two brands are similar may differ from how the examiner at IP Australia will review a trade mark application. However, because trademark searching is highly subjective and data from IP Australia and third-party sources may be incomplete, inaccurate, or out-of-date, we cannot warrant the accuracy of this report or that this report is error free or complete. As a result, we also disclaim all warranties of commercial use, use in trade, financial or economic value, or fitness for a particular purpose.

A Knock Out Search has limits.  Data in this report comes from IP Australia and other third-party intellectual property services websites.  This Report in no way constitutes a legal opinion.  Any analysis and determination about the availability of a brand name is solely the responsibility of You, the customer.   Any liability arising from the preparation of your Report or the use of this report is limited to a refund of the search fee paid.

Nothing in the Report is to be construed as constituting legal advice or the provision of legal services for advising on trademarks. Only the official examination by IP Australia can determine the extent, if any, of infringement. The Report contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters from an Intellectual Property Lawyer, Patent Attorney or Trade Marks Attorney.

12.  UNREGISTERED MARKS

Unregistered trade marks refer to trade marks that are not registered with IP Australia.  In Australia, an unregistered trade mark is still recognised as protected under Common Law and Australia’s automatic copyright protection.

It is possible that a third party may already be using an identical or similar trade mark for goods or services which are the same or similar to your proposed trade mark as an unregistered trade mark or business name. In these circumstances, there is a possibility that a third party might have sufficient grounds to bring an action for passing off based on their use of that trade mark. The third party will need to demonstrate that it has a significant reputation in the unregistered trade mark, and that the similarity between the respective trade marks is sufficient to give rise to a both a likelihood of confusion between the two trade marks and of damage to the third party.

YOUR ENDURILY REPORT DOES NOT INCLUDE AN UNREGISTERED TRADE MARKS SEARCH

By accepting our Services, you have agreed that you have completed a search of unregistered trade marks in your own brand development due diligence processes before requesting our Professional Services.

An unregistered trademark search that your business has previously executed may include a company search (a search of the list of companies at with ASIC to ensure that a company is not using the proposed trade mark as part of its corporate name), a Domain names search (a search to ascertain whether the proposed trade mark has been adopted as part of a third party’s top level domain name) and a Common law search (a search for unregistered trade marks intended to minimise the risk of passing off. The search is conducted from standard reference works such as telephone directories, dictionaries, relevant trade directories, social media and general internet searches).

13.  INFRINGEMENT INTERPRETATIONS

Your Report will detail potential commercial risks of infringement.

A registered trade mark can be infringed in the following circumstances:

  • When an identical trade mark is used in relation to identical goods/services to those of the registered trade mark
  • When an identical/similar trade mark is used in relation to identical/similar goods/services to the registered trade mark where there is a likelihood of confusion or association with that registered trade mark
  • Where an identical or similar trade mark is used on goods or services which are not identical/similar to those of the registered trade mark where that registered trade mark has a “reputation” in the Australia

Copyright – You should be aware that image trade marks or stylised word trade marks such as logos may infringe a third party’s copyright. As there is no copyright register in Australia no such third party rights will be revealed by these searches.

Domain names – Please note that existing domain names which are same/similar to the trade mark may impact on the ability to commercially exploit the proposed trade mark and domain names.

Database errors – The online search is conducted from a specialist database that has been compiled from the Australian trade mark register. Databases can contain inaccuracies which reduce the reliance which may be placed on any search.

Delay – There is a delay, of many weeks or  months, before details of newly filed international trade mark applications are placed on the records of the IP Australia Register of trade marks. The search will not reveal such recently filed applications.

14.  TERMINATION

If you want to terminate the Terms, you may do so by providing Us with 24 hours’ notice of your intention to terminate if you purchased the Standard Report or 18 hours notice for the Urgent Report by sending notice of your intention to terminate to Us via the email address we supplied to you to access your Questionnaire.

We may at any time, terminate the Terms with you if:

  – You have breached any provision of the Terms or intend to breach any provision;

  – We are required to do so by law;

  – We are transitioning to no longer providing the Services; or

  – the provision of the Services to you by Us, is in the opinion of Us, no longer commercially viable.

Subject to local applicable laws, We reserve the right to discontinue or cancel your access at any time and may suspend or deny, in Our sole discretion, your access to all or any portion of the Report without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Our name or reputation or violates the rights of those of another party.

When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Us have benefitted from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

15.  NO CLIENT ATTORNEY RELATIONSHIP CREATED

The purchase of a Report is not intended to create, nor should such transmission or receipt be taken as creating, a client-attorney relationship between Us and You, the recipient. 

16.  NO LEGAL ADVICE

The Services may provide information concerning potential legal issues, but it is not a substitute for independent legal advice from qualified counsel. At no time do We review information for legal sufficiency, draw legal conclusions, provide legal advice, opinions or recommendations about anyone’s legal rights, remedies, defences, options, selection of forms, or strategies. Use of the Services does not create any fiduciary relationship between You and Us. The accuracy of the Services is neither warranted nor guaranteed and you use the Services at your own risk. Report documents created using the Services may require individual consultation with an Intellectual Property Lawyer, Patent Attorney or Trademark Attorney prior to execution or trademark application filing who can advise you specifically on your matter.

17.  PRIVACY

We take your privacy seriously and any information provided through your use of the Services are subject to Endurily’s Privacy Policy, which is available here

 18.  GENERAL DISCLAIMER

Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded. 

Subject to this clause 5, and to the extent permitted by law: 

all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and 

We will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the content or these Terms (including as a result of not being able to use the content or the late supply of the content), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

Use of the Services and the Report content is at your own risk. Everything on the Questionnaire and Report and the content is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Untapped Agency Pty Ltd make any express or implied representation or warranty about the content or any Products or content referred to in the Report. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following: 

failure of performance, error, omission, interruption, deletion, defect, infringement, passing-off, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; 

the accuracy, suitability or currency of any information on the Application, the content, or any of its content related products (including third party material and advertisements on the Application); 

costs incurred as a result of you using the Application, the content or any of the products of Endurily; and the content or operation in respect to links which are provided for your convenience. 

18.1   Limitation of liability 

Our total liability arising out of or in connection with the content or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the content to you. You expressly understand and agree that Untapped Agency Pty Ltd its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss. 

You acknowledge and agree that We hold no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing your Report. 

18.2   Indemnity 

You agree to indemnify Us, our affiliates, employees, agents, contributors, third party content providers and licensors from and against: 

all actions, suits, claims, demands, liabilities, infringements, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your Report; 

any direct or indirect consequences of you accessing, using, transacting or making commercial decisions on the results of the Report; and/or any breach of the Terms.

18.3   Dispute Resolution 

Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought). 

Notice: A party to the Terms claiming a dispute (‘Dispute‘) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute. 

Resolution: On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties‘) must: 

Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree; 

If for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the Parties agree that the dispute will be submitted to mediation by the Australian Commercial Disputes Centre, in accordance with the rules of that body.  Each party will pay its own costs in connection with the mediation.

The mediation will be held in Queensland, Australia and both Parties agree that this location will not be changed.

The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation; 

Confidential: All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence. 

Termination of Mediation: If 120 have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so. 

18.4   Venue and Jurisdiction 

The Services offered by Endurily is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Services, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia. 

18.5   Governing Law 

The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns. 

18.6   Severence

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force. 

18.9   Variations

Any variation to these terms must be agreed in writing.


Terms Of Service Brand Clearance Report

Updated 11 January 2023 

ABOUT OUR SERVICES

Welcome to Endurily trademark clearance report services (the ‘Services’).

These General Terms and Conditions (“Terms”) govern your access and use of Endurily Services, as such term is defined below. “We”, “Our” , “Us” and “Endurily” means the Endurily trade mark and business unit as owned by Untapped Agency Pty Ltd (ABN 77149919199) entity or entities providing Services (therefore the entity or entities with all rights and obligations with respect to those Services). “You” and “your” means the client or customer agreeing to or accepting these terms.

We reserve the right to review and change any of the Terms by updating this page at its sole discretion. When we update the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

PLEASE READ THESE TERMS AND CONDITIONS (the ‘Terms’) CAREFULLY. By purchasing our Services, this signifies that you have read, understood and agree to be bound by the Terms.  If you do not agree with these Terms, you must not purchase our Services and cease using our website immediately.

1.  ACCEPTANCE OF TERMS

You accept the Terms by purchasing our Services. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Us in the user interface. By clicking on the “I have read and agree” you represent and warrant that You have read, understood and agree to be bound by these Terms.

2.  IP OWNERSHIP

We may refer to the product being the brand clearance trademark search report document (the ‘Report’).  When refer to both the Report and our Services combined, these comprise our Property (the ‘Property’).

The Services and the Report, the report content, and all related products of Endurily are subject to copyright.  The Report generated by the Services is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Report are owned or controlled for these purposes, and are reserved by Us or our contributing entities.

All trademarks, service marks and trade names are owned, registered and/or licensed by Untapped Agency Pty Ltd, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a client to:

  – use the Services and Report pursuant to the Terms;

  – print a copy of the Report for the purposes of sharing internally as a business document or with your client for whom you are engaged to develop a brand identity;

We do not grant you any other rights whatsoever in relation to the Services or Report.

We retain all rights, title and interest in the Services and Report and nothing you do in relation to the Services or Report will transfer any intellectual property rights to you.

You may not, without the prior written permission of Us and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the content or third-party content for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the website, which are freely available for re-use or are in the public domain.

You many not edit, cut, delete, omit, modify or make any changes to our Report.  It is to be presented in its entirety, whether as an internal business document or shared with your client. You may not remove our trade mark, branding elements or copyright registration.

You may not share the Report with any other third party who is not intended brand owner of brand identity for which the Services and Report have been purchased for or, in the case of an agency, freelancer, brand identity developer contractor, or consultant, you may not share the Report to any party that was not the intended brand owner.

3.  INTELLECTUAL PROPERTY RIGHTS ACCESS

Reservation of Rights.  Together with our licensors, we reserve all rights not expressly granted under the Agreement. Except for the limited rights and licenses expressly granted in this agreement, nothing in this Agreement grants or implies to you or any third party any intellectual property rights or other right, title or interest in or to our Property.  You acknowledge that, as between the parties, all intellectual property rights in our Property are owned by Us, our licensors or third party providers.  You will not remove or conceal any property rights notices in the Report and will include such notices on any copy you are permitted to make.

Services license. Subject to the terms and conditions of the Agreement, we hereby grant you a non-exclusive, non-sublicensable, non-transferable right to access, view and use our Services solely for our own internal business purposes.

Documentation license. Subject to the terms and conditions contained in the Agreement, where Report documentation is provided to you, We hereby grand you a non-exclusive, non-sublicensable, non-transferable license to use our Report solely for your internal business purposes and connection with your use of our Services. You are not allowed to cut, delete, omit, modify or make any changes to our Report.  You may not remove our trade mark, branding elements or copyright registration. We provide a single use, non-transferable, limited licence on the entire Report so that you may share the report with your client, if you have been engaged on their behalf for brand development.

Limited License to Your Data. You hereby grant us a non- exclusive license and right to use, copy, store, host, display, transmit and process Your Data solely as necessary for us, our employees and contractors to provide our Services under the Agreement and in accordance with applicable law. Your Data is the commercial, brand identity and business information that you provide to us in the course of engaging our services. We may delete or disable Your Data if required under applicable law, in which case we will use our reasonable efforts to provide notice to you. We acknowledge that, as between the parties, all intellectual property rights in Your Data are owned by you or your licensors.

Delivery. We will deliver our Services and any Report electronically, on tangible media, or by other means, in our sole discretion. When you receive via email, download or access our Services or Report, you are accepting it for use in accordance with the Agreement.

Ordered Report. When you purchase from Us, your Ordered Report identifies the Services, quantities, charges and other details of your order. The applicable Ordered Report may also refer to and incorporate documents which may apply to the Services or Report you selected. Each Ordered Report, any applicable incorporated documents and these Terms constitute the complete agreement and supersede any prior or discussions, agreements, representations or warranties regarding your order.

We comply with Australian Consumer Law and the following detail our services, goods and relationship with you:

4.  PURCHASE OF GOODS

You understand that you are purchasing a Report which will compare your proposed new brand name or brand logo that incorporates your brand name with all registered, pending and refused trade marks on the IP Australia trade mark data base. You are only purchasing one report for one brand name in words or one logo image that incorporates your brand name.

5.  PURCHASE AND REFUND

Payment is due on purchase as you can decide which of our Services you require.

As we provide professional services, you are entitled to a refund if we fail to supply you with your Report within the timeframe that you purchased for that Service. You are not entitled to a refund if you do not like the results of your Report.

You are not entitled to a refund if you apply for a trademark with IP Australia and are issued an adverse examination and the cited trademarks were not included in your Report from Us. The tests for determining whether two trade marks are likely to be confused are open to significant interpretation, and reasonable assumptions can differ. 

ACCESS TO SERVICES

6.  QUESTIONNAIRE

For Us to complete your Services, you will complete our questionnaire. You will supply your brand name in words or your brand logo that incorporates your brand name to us, and You are responsible for providing the commercial information as to the trademark and its context, (the “Brand Identity”) for the purpose of researching and compiling your Report. The purpose of the questionnaire is to detail how the brand will be used in the course of trade so we can utilise this information to deliver our trade mark attorney services to execute a trade mark register search and present as a document (the ‘Professional Services’).

7.  PROFESSIONAL SERVICES

A Trade Marks Attorney oversee your Report search and content compilation and list potential infringement discovered through identical, substantially identical, deceptively similar or confusingly similar comparative trademark research on the IP Australia trademark database.  This is executed on the brand identity details as supplied by you.

The search of IP Australia is conducted on the exact Brand Identity details provided to us.  As the search is contained to these exact Brand Identity elements, the search is a preliminary and limited search (the “Knock Out Search”). The Knock Out Search is executed to identify any obvious third-party registration that may be identical or nearly identical to your Brand Identity which is listed in your Report that may prevent you from moving forward with your Brand Identity.

8.  ORDERED REPORT SCOPE

The search is only valid for the exact Brand Identity you provided and the exact list of products and services you supplied. Depending upon the type of search requested, that is for your brand name or logo incorporating your brand name, the report may include trademark records from IP Australia which is the governing body for trade marks in Australia.

This report is designed to uncover trademark rights that have the potential to conflict with the proposed brand name or brand logo incorporating the brand name for the products and services you provide to us.

Key Limitations

Scope of search – The goods and services for which a trade mark can be registered are subdivided into 45 classes. Unless otherwise stated the on-line search is restricted to those classes containing goods and services which are identical to those for which your proposed trade mark is to be used.

Logo searches – Ultimately is impossible to take any search as being conclusive because of the problems with logo classification and perception, by the IP Office and the searcher concerned.  There are subjective interpretations as to the elements of a logo device and these can impact the search terms applied.

Highly subjective tests – the tests for determining whether two trade marks are likely to be confused are open to significant interpretation, and reasonable opinions can differ.

Unregistered marks – these are NOT searched in the process of researching and compiling your report.

Convention priority and increased use of Madrid Protocol – trade mark applications claiming convention priority and filed under the Madrid Protocol may not be immediately visible due to processing delays. These issues can take several months to resolve. The result is that an application may not appear on the Australian register until 6-12 months after its priority date. 

9.  THE REPORT

From the completion of our Services, we will compile the Report. This will be provided in a PDF format and sent to you to the email address you supplied. It will detail trademarks that may be identical, substantially identical, deceptively similar or confusingly similar to the brand identity details you supplied. 

10.  TRADEMARK COMMERCIAL RISK

Your Report will present trademarks from the IP Australia database that may be potentially identical, substantially identical, deceptively similar or confusingly similar to your supplied brand identity details.

You can then interpret the Report results and assign your level of commercial risk to the information provided.  We emphasise that determining commercial risk of infringement is high subjective. The tests for determining whether two trade marks are likely to be confused are open to significant interpretation, and reasonable opinions can differ. 

“Commercial Risk” means the chances that a You or Your client determines it will undertake when deciding to continue development of a brand identity, or abandon a brand identity, after the presentation of the Endurily Report, which may result in economic loss, whether pure of or consequential, as it may include possible immediate or future trademark infringement, financial loss and reputational loss. 

11.  LIMITATIONS, NO WARRANTIES

We have taken reasonable steps to ensure that the Report includes complete and accurate information.  The search is based on the exact brand name or logo and the commercial use of the brand identity in the market. The list of comparative elements used by our Trade Marks Attorney to provide the Services for determining whether two brands are similar may differ from how the examiner at IP Australia will review a trade mark application. However, because trademark searching is highly subjective and data from IP Australia and third-party sources may be incomplete, inaccurate, or out-of-date, we cannot warrant the accuracy of this report or that this report is error free or complete. As a result, we also disclaim all warranties of commercial use, use in trade, financial or economic value, or fitness for a particular purpose.

A Knock Out Search has limits.  Data in this report comes from IP Australia and other third-party intellectual property services websites.  This Report in no way constitutes a legal opinion.  Any analysis and determination about the availability of a brand name is solely the responsibility of You, the customer.   Any liability arising from the preparation of your Report or the use of this report is limited to a refund of the search fee paid.

Nothing in the Report is to be construed as constituting legal advice or the provision of legal services for advising on trademarks. Only the official examination by IP Australia can determine the extent, if any, of infringement. The Report contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters from an Intellectual Property Lawyer, Patent Attorney or Trade Marks Attorney.

12.  UNREGISTERED MARKS

Unregistered trade marks refer to trade marks that are not registered with IP Australia.  In Australia, an unregistered trade mark is still recognised as protected under Common Law and Australia’s automatic copyright protection.

It is possible that a third party may already be using an identical or similar trade mark for goods or services which are the same or similar to your proposed trade mark as an unregistered trade mark or business name. In these circumstances, there is a possibility that a third party might have sufficient grounds to bring an action for passing off based on their use of that trade mark. The third party will need to demonstrate that it has a significant reputation in the unregistered trade mark, and that the similarity between the respective trade marks is sufficient to give rise to a both a likelihood of confusion between the two trade marks and of damage to the third party.

YOUR ENDURILY REPORT DOES NOT INCLUDE AN UNREGISTERED TRADE MARKS SEARCH

By accepting our Services, you have agreed that you have completed a search of unregistered trade marks in your own brand development due diligence processes before requesting our Professional Services.

An unregistered trademark search that your business has previously executed may include a company search (a search of the list of companies at with ASIC to ensure that a company is not using the proposed trade mark as part of its corporate name), a Domain names search (a search to ascertain whether the proposed trade mark has been adopted as part of a third party’s top level domain name) and a Common law search (a search for unregistered trade marks intended to minimise the risk of passing off. The search is conducted from standard reference works such as telephone directories, dictionaries, relevant trade directories, social media and general internet searches).

13.  INFRINGEMENT INTERPRETATIONS

Your Report will detail potential commercial risks of infringement.

A registered trade mark can be infringed in the following circumstances:

  • When an identical trade mark is used in relation to identical goods/services to those of the registered trade mark
  • When an identical/similar trade mark is used in relation to identical/similar goods/services to the registered trade mark where there is a likelihood of confusion or association with that registered trade mark
  • Where an identical or similar trade mark is used on goods or services which are not identical/similar to those of the registered trade mark where that registered trade mark has a “reputation” in the Australia

Copyright – You should be aware that image trade marks or stylised word trade marks such as logos may infringe a third party’s copyright. As there is no copyright register in Australia no such third party rights will be revealed by these searches.

Domain names – Please note that existing domain names which are same/similar to the trade mark may impact on the ability to commercially exploit the proposed trade mark and domain names.

Database errors – The online search is conducted from a specialist database that has been compiled from the Australian trade mark register. Databases can contain inaccuracies which reduce the reliance which may be placed on any search.

Delay – There is a delay, of many weeks or  months, before details of newly filed international trade mark applications are placed on the records of the IP Australia Register of trade marks. The search will not reveal such recently filed applications.

14.  TERMINATION

If you want to terminate the Terms, you may do so by providing Us with 24 hours’ notice of your intention to terminate if you purchased the Standard Report or 18 hours notice for the Urgent Report by sending notice of your intention to terminate to Us via the email address we supplied to you to access your Questionnaire.

We may at any time, terminate the Terms with you if:

  – You have breached any provision of the Terms or intend to breach any provision;

  – We are required to do so by law;

  – We are transitioning to no longer providing the Services; or

  – the provision of the Services to you by Us, is in the opinion of Us, no longer commercially viable.

Subject to local applicable laws, We reserve the right to discontinue or cancel your access at any time and may suspend or deny, in Our sole discretion, your access to all or any portion of the Report without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Our name or reputation or violates the rights of those of another party.

When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Us have benefitted from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

15.  NO CLIENT ATTORNEY RELATIONSHIP CREATED

The purchase of a Report is not intended to create, nor should such transmission or receipt be taken as creating, a client-attorney relationship between Us and You, the recipient. 

16.  NO LEGAL ADVICE

The Services may provide information concerning potential legal issues, but it is not a substitute for independent legal advice from qualified counsel. At no time do We review information for legal sufficiency, draw legal conclusions, provide legal advice, opinions or recommendations about anyone’s legal rights, remedies, defences, options, selection of forms, or strategies. Use of the Services does not create any fiduciary relationship between You and Us. The accuracy of the Services is neither warranted nor guaranteed and you use the Services at your own risk. Report documents created using the Services may require individual consultation with an Intellectual Property Lawyer, Patent Attorney or Trademark Attorney prior to execution or trademark application filing who can advise you specifically on your matter.

17.  PRIVACY

We take your privacy seriously and any information provided through your use of the Services are subject to Endurily’s Privacy Policy, which is available here

 18.  GENERAL DISCLAIMER

Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded. 

Subject to this clause 5, and to the extent permitted by law: 

all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and 

We will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the content or these Terms (including as a result of not being able to use the content or the late supply of the content), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

Use of the Services and the Report content is at your own risk. Everything on the Questionnaire and Report and the content is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Untapped Agency Pty Ltd make any express or implied representation or warranty about the content or any Products or content referred to in the Report. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following: 

failure of performance, error, omission, interruption, deletion, defect, infringement, passing-off, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; 

the accuracy, suitability or currency of any information on the Application, the content, or any of its content related products (including third party material and advertisements on the Application); 

costs incurred as a result of you using the Application, the content or any of the products of Endurily; and the content or operation in respect to links which are provided for your convenience. 

18.1   Limitation of liability 

Our total liability arising out of or in connection with the content or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the content to you. You expressly understand and agree that Untapped Agency Pty Ltd its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss. 

You acknowledge and agree that We hold no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing your Report. 

18.2   Indemnity 

You agree to indemnify Us, our affiliates, employees, agents, contributors, third party content providers and licensors from and against: 

all actions, suits, claims, demands, liabilities, infringements, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your Report; 

any direct or indirect consequences of you accessing, using, transacting or making commercial decisions on the results of the Report; and/or any breach of the Terms.

18.3   Dispute Resolution 

Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought). 

Notice: A party to the Terms claiming a dispute (‘Dispute‘) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute. 

Resolution: On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties‘) must: 

Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree; 

If for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the Parties agree that the dispute will be submitted to mediation by the Australian Commercial Disputes Centre, in accordance with the rules of that body.  Each party will pay its own costs in connection with the mediation.

The mediation will be held in Queensland, Australia and both Parties agree that this location will not be changed.

The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation; 

Confidential: All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence. 

Termination of Mediation: If 120 have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so. 

18.4   Venue and Jurisdiction 

The Services offered by Endurily is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Services, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia. 

18.5   Governing Law 

The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns. 

18.6   Severence

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force. 

18.9   Variations

Any variation to these terms must be agreed in writing.