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The brave new world of trade mark protection

The brave new world of trade mark protection

16 Apr 2018

Article by Louise Bavin
Can you own your head?  Can you own your meta-tag data?   

Off with her head!

It has been reported recently in the press that the Queen has upset the Royal Mail.  Reportedly, the Royal Mail wished to trade mark the Queens profile in the hope of making financial gains from the sale of merchandise which depicted the Queen’s famous profile.  It seems that the Palace put a quick stop to this! 
I want to protect my brand!       
The Queen’s famous profile can be protected, but what about protections for more modern trade mark usage?  How powerful is a registered trade mark in the context of emerging technologies?
Search engine optimisation often raises the profile of one’s business.  However, caution is advised.  When making use of “keywords” in source data, “meta-tags” may potentially be infringing upon another’s trade mark.
In Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56 we find a clear illustration of the benefits of owning a registered trade mark.  Accor owned the registered trade mark “Harbour Lights”.  The source data for the defendant’s website included the title “Cairns Luxury Accommodation - Waterfront Apartments - Harbour Lights - Cairns Queensland”.  Under that appeared keywords including “content: = Harbour Lights Apartments in Cairns offer luxury private waterfront apartment accommodation for holiday letting and short-term rental”.  It was contended that the use of the words “Harbour Lights” in the source data was an infringement of the registered trade mark.  Interestingly, the source data was not readily visible.  Indeed, it was visible only to those who know what to look for.
The Court found that even though the source data did not appear on the screen when keywords were inputted into a search engine, the use of the meta-tag data “Harbour Lights” constituted ‘use as a trade mark’.  This use was found to be an infringement of the trade mark. 
It is not unusual for source data to contain brand references.  With new technologies at our fingertips our ability to exploit branding has exploded.  The utilisation of brand names on Facebook, Instagram and Twitter is commonplace.  Whilst this practice can enhance the awareness and profile of one’s business it can also pose a potential risk when it is used to the detriment of a brand.
The important message here is that one should be vigilant in protecting branding.  For the relatively small cost of registering a trade mark the protections provided can enable control of promotions via the internet, social media, digital streaming, mobile and smart devices. 
Not only should one secure protection of obvious branding (like the name or logo of one’s business), but also branding which may encapsulate catchphrases, slogans or even twitter-handles.  A registered trade mark can provide protections which can reach beyond customary applications as technological advances expand branding platforms. 
Registered trade mark protection can provide one with the ability to protect the way brands are used and prevent misuse by third parties more than ever as new technologies evolve.  Take the time to protect your valuable asset. 

If you have any questions or concerns about your IP, or would like to speak with a lawyer, email or call us on + 61 2 9458 7005.

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