It often appears that our reputation is synonymous with our name and the law of defamation protects our name. The same is true of a business.
If a business is endeavouring to pass itself off as another business by the use of a similar logo or advertising it is guilty of a tort, or a legal wrongdoing. The tort of “passing off” has now been enshrined in legislation in Australia by Section 18 of the Competition and Consumer Act 2010 and by sections 52, 53, 82 and 87 of the Trade Practices Act 1974. Under the above-mentioned Acts a business if it creates a misleading overall impression to the intended audience that it may be another business, it is likely to break the law, whether it intended or not. This occurs if it uses any statements and/or actions in its “business conduct “that appears to affect the beliefs and thoughts of a consumer, to mislead. By examining the decisions of the courts, it is seen that protection of a business name, logo or identity has been quite stringent but the offending conduct must be fully borne out so as to protect all parties. Just a similarity is not usually a sufficient basis to succeed in a claim.
In all cases each matter must be treated on its own merits but if you are a business owner, this must be kept firmly in mind.
If you find yourself in this situation please get in touch, our civil litigation team can can help provide you with the best solution and outcome.