Even if you don't have a trademark, the law provides some protection for business owners against business copycats in a number of ways. Each option is explained below.
Option A: Passing off
The law protects businesses who can show:
1- Goodwill: This is your reputation in the business, online or physical presence and branding. It is proven by sales figures, advertising and
surveying customers where it is a word of mouth business.
2- Misrepresentation: Another person (or business) uses your business name or branding to persuade customers to believe that the product (goods or services) have an association or endorsement which they do not.
3- Damage: You need to show that you have lost customers or clients as a result of the misleading behavior.
Option B: Section 18 Australian Consumer Law
Businesses can use consumer protection laws to protect their business name. The argument here is that by falsely using your brand, it will mislead or deceive consumers. The elements you need to prove are:
1- A person (or business) in trade or commerce (ie- in a business setting).
3- Has engaged in conduct which is misleading or deceptive or is likely to mislead or deceive.
Your lawyer sends a letter which explains:
1- How they have broken the law in terms of Section 18 and passing off as your brand;
2- Asks them to stop using your business name and, if appropriate, asks
them to compensate you for any losses incurred by your business;
3- Explains the legal implications if they continue to use your name.
It usually resolves at this stage. But if they continue to use your business name, you can take them to Court.
This is a complex area of law with numerous cases interpreting the specific words of the legislation. Therefore we recommend that you speak with a lawyer.
Contact Caroline Mense at Legal Enablers
Call: (03) 8691 3128
Meet: Level 14, 330 Collins Street Melbourne VIC 3000