The legal issues that are raised by branding, under Australian law, don’t fall neatly into one category. (Similar issues probably exist in other countries. This post focuses on Australia.)
Here are some of the issues:
- If goods and services are sold under a registered trade mark, then the trade mark is protected under the Trade Marks Act, and action can be taken under that law against people using the trade mark without the authorisation of the owner. But, if a trade mark is not registered, that doesn’t mean there is nothing that can be done to stop other people using it. Remedies may be available under the law of torts (e.g. an action for passing off), and competition law, the Australian Consumer Law, to stop misleading and deceptive conduct. Indeed, these remedies are probably also available against most abusers of registered trade marks, but may not be implemented because the Trade Marks Act provides a straight-forward enforcement method. Trademark registration is an important way to protect product and service branding.