Protecting Your Business From Copy Cat Competitors




Protecting Your Business From Copy Cat Competitors

Rhiannon Saunders
: (07) 4046 1118

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Some business owners may attempt to rip off the good name, brand and the reputation of a competitor. If this happens to you in business what can you do to protect everything you’ve worked so hard for?

You can’t necessarily prepare or prevent someone from defaming you or your business, but you can take proactive steps to protect your business from threats such as these.

Ideally you will have:

• Registered your business name
• Registered a domain name/s
• Registered your ownership of any IP – i.e. a patent, a design, or a trademark

Sometimes, though, even if you haven’t taken those steps, the law will protect you if you can prove that your business has established a good, well known reputation, and a competitor is trying to take advantage of that.

To use an example, we have represented businesses who have an established presence in an industry, and a competitor has come along with a very similar sounding name and/or branding in the same industry. Sometimes this is deliberate, other times it might be completely innocent.

The action that is taken has depended in part upon whether the business has already taken steps to register their business and so on.

If the business has ‒– it may have been able to take action based on an infringement of its registered rights.

If the business has not, it may have been able to commence an action for misleading conduct or what is also known as passing off.

Passing off is where someone is copying or pretending to be an already established business. They often do this by adopting a similar name or branding.

There are some requirements:

(a) you need to have established goodwill,

(b) there needs to be misrepresentation, and

(c) damages must have been caused or likely to be caused to the business as a result of the deception.

If you are bringing a passing off claim, you are usually wanting a court to make orders that stop the other party from impersonating your business, and you might also be seeking an account of profits from that other party. In other words, if they have profited from their copycat behaviour, then they should account to you for the amount of those profits.