Comparative advertising is a form of advertising where a supplier compares its product favourably against the product of a competitor.  It is not that common as it can be risky because: The comparison has to be absolutely accurate – many examples of comparative advertising that come to Court fail to do this; and Your competitor will absolutely hate your ad and will immediately contact their lawyer demanding that your advertising campaign be stopped. If any aspect of your ad could be construed as being misleading, they are likely to send you a legal letter of demand and may well sue yo ..read more

It is quite common today for businesses to abbreviate their name to its initial letters.  However, from a trade marks perspective, if a registered trade mark comprises of only a few letters, especially if they cannot be spoken as a word, legal protection may be quite narrow. KFC v Grill’d This happened recently to the KFC company (KFC Co), who opposed a trade mark application for HFC by rival restaurant business Grill’d (KFC v Grill’d).  HFC meant Healthy Fried Chicken.  KFC is an abbreviation of Kentucky Fried Chicken. Not sufficiently similar The Trade Marks Office Hearing Of ..read more

What you need to do In the excitement of starting a new business, or launching a new product, you may overlook one important step – carrying out searches to see whether there are any similar trade marks out there in the same field that may prevent you using your chosen mark. Searches can be carried out professionally or you can do it yourself.  But if it is a DIY search, it has to be thorough.  This involves at least the following: Internet searches; Trade Marks Register searches; and ASIC searches of business and company names. If there are any other resources that would show com ..read more

 Summary Binding legal agreements can be solely verbal or a combination of conversations and writing, such as emails. But, if the parties disagree on the terms, they can be difficult to enforce. When businesses commission copyright works, they normally do not receive ownership of the copyright unless this is in writing. The commissioning party will usually receive a licence to use and reproduce the work in certain ways. Courts have had to work out the scope of the licence if this has been left unsaid. The best way to avoid such disputes is for the whole agreement to be set out in writing ..read more

It depends on what you mean by “own” – but if you mean that you have exclusive rights to the name and can prevent competitors from using it – no, not really.  A trade mark registration is the only way to own a name in this sense.   Trade marks vs business and other names A trade mark registration is your property that you can own and sell or license to others.  If someone infringes your trade mark, you can send a letter of demand (cease and desist) to require them to stop and, if necessary, sue them for trade mark infringement. You have to give a name to your company, even ..read more

In 2021 the Federal Court found that Employsure, in its Google ads, misrepresented that it had associations with various Government agencies.  I reported on this case here. The Trial Judge imposed a fine of $1 million for these breaches of the Australian Consumer Law (ACL).  The Australian Competition and Consumer Commission (ACCC) appealed this penalty decision and the Full Court of the Federal Court has increased the penalty to $3 million – Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5 (8 February 2023) How could a Google campaign cost so much ..read more

AGL v Greenpeace AGL, an Australian energy company, used the logo: AGL claimed ownership of the copyright in this logo as well as having registered the logo as a trade mark. Copyright works can include artistic works, such as a logo, and literary works, including business documents. Greenpeace has a long history of environmental activism. It launched a campaign against AGL which involved using the AGL logo with the words “Australia’s Greatest Liability”. Here is an example: On other occasions Greenpeace used the AGL logo on its own, without the tagline. AGL sued Greenpeace for copyright inf ..read more

Is it a good idea to use someone else’s name as a Google keyword and Google headline? The Full Court of the Federal Court has recently said “no”.  Google keywords on a website are not visible but they are used to attract consumers to the site when that keyword is typed into the Google search engine.  But the Google feature of “dynamic keyword insertion” has changed this. Facts In the case of Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142 (13 August 2021) Employsure was a private consultancy that advised employers and business owners about workpl ..read more

This question was answered “no” in the case of Lumen Australia Pty Ltd v Frontline Australasia Pty Ltd [2018] FCA 1807but the answer may be different in other circumstances. The facts Lumen supplied Frontline with electronic automotive components for inclusion in towbar kits that were supplied by Frontline to Mitsubishi and Mazda.  Frontline, for profit reasons, decided to replace these components with components made by Vision, without telling either Lumen or its customers or obtaining their approval. To facilitate this substitution, Frontline provided Vision with samples of the Lumen p ..read more

Suppliers outside New South Wales New South Wales has introduced a new law that requires suppliers, before they supply goods or services, to take reasonable steps to ensure that the consumer is aware of the substance and effect of any term or condition relating to the supply that may substantially prejudice the interests of the consumer (consumer disclosure rules).  “Consumer” can include certain business purchases as well as personal purchases. This change to the Fair Trading Act applies not only to suppliers located in NSW, but also to conduct within or outside NSW that: (a)  is i ..read more