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BRAND
PROTECTION
PREVENTING OFFSIDE
PLAY BY IMITATORS
T
he sports and fitness industries
have seen an increase of new
market entrants in the past
few years. We have seen trends such
as CrossFit and other forms of high
intensity interval training attract sports
fanatics and corporates; school students
and families, across the nation. With the
rise in the general population engaging
in active lifestyles we have also seen the
rise of businesses that sell active wear,
energy supplement powders, energy
drinks and protein bars. Many of these
new market entrants have sought to
establish their reputation through
unique branding strategies.
In today’s globalised economy,
branding can be as vital to a business’
success as financial projections and
physical sales.The rampant use of social
media through Facebook, Instagram
and others, has lowered the financial
barrier to mass advertising, leading to
explosive growth in small (and large)
businesses able to reach critical mass
in the consumer market. However, as
a business’ brand increases, so too does
the increased risk of the legal issues
associated with branding.
Understanding the ways in which
you can protect your brand is vital
to avoiding unnecessary legal costs
exposure and re-branding. Outlined
below is your “survival” guide to legal
brand protection, in Australia.
BRAND PROTECTION
The need to protect a unique brand is
not a new concept - in fact, the earliest
attempts of brand protection stem back
to the bartering days of the middle ages.
The commercial concept of a “brand”
and the legal definition of a “trade
mark”, are commonly confused.
A brand is a concept that is broader
than a trade mark - it includes the
physical representation of logos, phrases,
trade dress, and intangible qualities
associated with customer service,
product quality and goodwill.
On the other hand, a trade mark
by legal definition is much narrower
in scope.The Trade Marks Act 1995
(Cth) describes a trade mark as being
a “sign used, or intended to be used, to
distinguish goods or services dealt with
or provided in the course of trade by a
person from goods or services so dealt
with or provided by another person”.
A sign in this context can range from
letters to a colour; sound to a graphic
device.
REGISTEREDTRADE MARKS
Intellectual property rights protection
in a brand can be achieved in many
ways.The easiest (and strongest) way
to achieve this is to obtain a registered
trade mark. Registered trade marks
protect a right that is otherwise
intangible in nature, and can assist long
term with accrued goodwill, and brand
value. A registered trade mark affords
you with the exclusive right to use that
trade mark in connection with goods
and services.
However, not all trade marks are
capable of registration. A mark must
be inherently adapted so that it can
distinguish your goods or services
from similar goods and services offered
TomWebster,
Solicitor, HWL Ebsworth
LEGAL FOCUS