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Someone has Copied my Product. What Can I do?

We hear this a lot. Not only in our professional roles, but also just in everyday life and especially on social media these days. We think this may come from a misunderstanding that some people have about the nature and the bounds of intellectual property rights, or it could just be as simple as people having rather vague awareness of counterfeiting. The idea of ‘copycats’ is constantly discussed so a lot of people think they understand their rights when their products are copied. This can perhaps lead to erroneous conclusions about what this means for their own business when they encounter what they believe to be a copycat.

To answer the question of what can you do if you think someone’s copied your product, you need to first identify if or what it is that you actually own. In other words, what is your intellectual property? Take handbags as an example, which are probably one of the most well-known kinds of knockoff products. If you have produced a handbag, what, if any, intellectual property do you own in connection with the bag?

There are different forms of intellectual property and related rights that you can find in a handbag (or indeed in most products). To name just a few, if the handbag features a name or a logo, those could be protected as trade marks. If a handbag features a 2D visual print, that may also be an artistic work such that the print may be protected by copyright. The overall look and configuration of the handbag and visual features may also be protected as a registered design.

If it’s novel and it’s distinctive, then it’s possible that you could have a design registration for the look/appearance of the handbag. New or novel is a requirement for obtaining enforceable design protection in Australia. This means you cannot disclose your design before filing a design application. If you promote or sell your design before filing, this will mean you are unlikely able to protect it through design registration.

And lastly, if the handbag’s design, whether it’s registered as a design or not, has become well-known that it’s actually associated exclusively with one trader and no other trader, then it might have actually acquired a reputation and in that case it may be protected as it could mislead consumers should another trader reproduce that well-known bag as their own.

Some examples of such iconic handbags would be the Birken or the Chanel 2.55. It’s important to note here that in order for a product of any kind, whether it’s a handbag or not, to be instantly recognisable as coming from one trade source, without a trademark being visible, it has to have been promoted so extensively that it’s unquestionable. Essentially it needs to be so notorious that nobody would question whether that handbag when you see it is instantly recognisable as being, for instance, a Chanel 2.55, and that is a very high evidentiary burden.

Suffice to say, there aren’t many products out there that meet that burden. So that brings us back to the question of whether you can take action against what you perceive to be a copycat product. And the answer really does depend on whether you can point to what intellectual property rights you own in your own product, and also establish whether the so-called copycat has copied what it is that you own intellectual property rights in.

Not all perceived ‘copycat’ products can be stopped. A common example is where you’ve got a copycat product that looks very similar. They’re sold under a different brand. And in that case, unless you have IP rights in the product itself, whether it’s the design or some artwork present that’s protected by copyright, it is going to be very difficult to prevent that sort of copycat because you just have an uphill battle taking action. Unless again, you either have protection in the design or copyright or a significant reputation, which as we mentioned before is a very difficult hurdle to jump.

Our advice to clients who don’t have exclusivity in the product itself is to adopt a distinctive brand and always market the product by reference to your brand. That way consumers would come to associate your product with your brand. And that way, even if a competitor does copy your product, they won’t be able to ride on your coattails as it were as they would have to market under a completely different brand. In other words, they won’t have the advantage of any goodwill that you’ve established in your brand because they’re not using your brand and they can’t use your brand. And that really is the most effective way to protect your product in the absent of registered rights to the design of the product itself.

If you believe somebody has copied your product, don’t leap to the conclusion that you have the right to send a letter of demand or cease and desist letter. We appreciate it is very upsetting to think your hard work has been copied, but, if you send a letter without any proper basis in law to do so, you could find yourself in trouble. So rather than do that, first seek advice from a trade mark attorney or an intellectual property lawyer.

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