25 September 2015
Hi
My client has a small business in a small town. It is the only business of its type in the town. The business uses an image and name they have generated themselves. The name is registered, the image is not.
Another business is opening a branch in the same town and have a similar name and image. The image they use appears to be public domain.
Does my client have any claim to force a change of image and/or name? At least for the branch that is opening in the town?
Thanks.
The following is an extract from our Trade Marks publication:
At common law, a person does not acquire any exclusive right to use a name, word or unregistered mark merely because they created it or were the first to use it. Only registration of a trade mark gives that exclusive right in relation to the goods or services in the area in relation to which it is registered.
If, however, a mark has been used to form a connection between a person and goods or services that they supply, unauthorised use by another person may amount to a misrepresentation which is actionable as passing off or as conduct likely to mislead or deceive under the Australian Consumer Law – Schedule 2 of the Competition and Consumer Act 2010.
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