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Do your homework before you adopt a new name or brand

Consumer Law News | August 2014

In the recent case of Unilever Australia Ltd v Revlon Australia Pty Ltd (No 2) [2014] FCA 875 the Federal Court considered competing claims by the manufacturers of deodorants namely Unilever's Rexona and Dove brands on the one part and Revlon's Mitchum brand on the other part.

As is commonly argued in these types of cases, the parties claimed that the other's packaging and advertising and marketing campaigns were substantially similar to the point that (in Revlon's case) the consumers of the Rexona products in their new packaging would be confused with the Revlon product.

The court held the Revlon product had not acquired a reputation amoungst consumers to the sufficient degree that would support an injunction against Rexona from releasing its new branding.

The court also held that Revlon did not demonstrate significant likelihood it would succeed in claim that features of Mitchum Clinical packaging had become sufficiently distinctive and associated in minds of substantial number of potential purchasers so that Revlon could be said to have acquired a relevant trade reputation.

Forum Law is currently defending a claim by a party against our client for allegedly similar branding of a similar business. The usual grounds for such claims is misleading and deceptive conduct under s.18 of the Australian Consumer Law, attempts to "pass off" one product as the competitor's product, and for breaches of copyright or trademark ownership.

We advise businesses to thoroughly research their desired "brand" before they embark on expensive branding and promotional activities to avoid these conflicts which can engender expensive stoushes in their shared industry.

If you have any questions or concerns regarding protecting your brand and intellectual property contact Annette Fontana at Forum Law, lawyers in the Inner West for professional and effective advice.

Forum Law is an active member of several reputable law and industry associations. We have recently obtained ISO9001 accreditation.