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Have your burger and eat it too!

Have your burger and eat it too!

08 Apr 2020

Have your burger and eat it too!
WRITTEN BY
Louise Blair
Louise Blair
Associate

Have your burger and eat it too!

08 Apr 2020

Would you like Trade Mark Registration with that?
I’ll have one burger and a side of trade mark registration please.  Although the burger may seem important, of more importance to you, and your business, is registered trade mark ownership.  Sure, you probably own your business or company name, your domain name and you use many of the branding names and logos of your products or services, but, do you have the exclusive right to use them?  Only the added legal protections under the Trade Marks Act 1995 can provide thorough protection.

If your branding is properly protected, then no matter how small or large your business, you can enforce your rights.

Take our BURGER KING example.  Don Dervan, an American who came to settle in Adelaide opened his first burger restaurant in 1962.  He settled on the name BURGER KING.  By 1970 the business was booming, and he had 17 restaurants around Australia.  He had an entrepreneurial streak and was savvy enough to protect his branding by registering the trade mark BURGER KING.  Good move Don.

By 1971, on the other side of the planet the US burger chain BURGER KING was looking to expand its franchises into Australia.  Wishing to brand up as BURGER KING it discovered that the trade mark was already registered in Australia.  If the US franchise were to have proceeded with their BURGER KING branding in Australia, they would have been in breach of Don’s registered trade mark rights.  Don’s remedies would have been to seek an injunction, damages or an account of profits.  Given the sheer size of the US BURGER KING business a breach of Don’s registered trade mark rights could have cost the US franchise giant a great deal of money.  Clearly, Don was in a very good position.

Don was not prepared to relinquish his registered trade mark rights.  As a result, the US franchise giant was left with little choice.  It re-branded its franchises for the Australian market as HUNGRY JACK’S.  The first HUNGRY JACK’S outlet was opened in Perth in 1971. 

Ultimately, Don retired and allowed his trade mark registration to lapse.  A more likely result today would have been the sale of this very valuable business asset.

Today, Burger King Corporation is the owner of 45 registered trade marks.  This suite of registered trade marks is made up of many brands.  Obviously, most of the original registrations owned by Burger King Corporation are for HUNGRY JACK’S and for BURGER KING in various goods and services classes.  However, as the business and its products and services expanded and developed, many more trade marks were registered for its particular products and other branding.  For example, WHOPPER, WORLD OF WHOPPERTUNITIES, ANGRY ANGUS, PENNY PINCHERS and BACONATOR, amongst many others.

Shrewd business people today register their business’s trade marks.  They also remember to register the branding for particular products or services.  You don’t want a competitor beating you to it.

By registering your trade mark you can:

  • protect your branding throughout Australia;
  • turn it into a valuable asset when you value or sell your business;
  • sell it or license the use of it to another;
  • more easily and quickly stop others from using it.

Only a registered trade mark gives you the exclusive legal right to use your trade mark throughout Australia.  Business, company or domain names do not provide this level of protection.

If you would like to register a trade mark or discuss protecting your branding, contact our experienced IP Lawyers on 1300 565 846 or email IP@ablawyers.com.au

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