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Brand Piracy: watch out for copycats!

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Branding is more than ever a hot topic. Both start-ups and larger companies invest a lot of time and resources in finding or protecting the perfect name under which they want to market their goods or services. There are however more and more copycats out there.

Below, we briefly discuss a situation that is quite common.

A start-up decides to sell its innovative product through an online shop. After a few months, given the success of the online sales, the start-up decides to register the product name as a trademark. During the application process however, the start-up discovers that one of its biggest competitors has already registered the same name as a trademark and has also announced to sell the same product under this name. Moreover, the domain name used by the competitor is nearly identical.

Although the principle "first come, first served" applies to trademark and domain name registrations, this does not necessarily mean that the start-up cannot take action against such copycats.

In fact, a trademark can be declared invalid if the trademark application was done in bad faith, even if the copycat was first. Bad faith may exist when the applicant - taking into account the factual circumstances and the respective (earlier) rights of the parties - has less than honest intentions with the trademark. For example, to take advantage of the brand reputation or to sabotage a competitor.

Nowadays, invalidity or cancellation proceedings can be initiated both before the Benelux Office for Intellectual Property as well as before the courts. The former are faster, but require a higher provisional fee than the cost of a court citation.

Likewise, regarding unlawful or confusing domain name registrations - also known as cybersquatting - several options exist to enforce the cancellation or transfer of the domain name in the short term. A domain name registration can be considered unlawful when the applicant registers the domain name without any right or interest and with the intention of obtaining an unjustified advantage. For example, merely seeking financial gain or taking advantage of their brand reputation.

Ultimately, the best way to avoid brand piracy is to register your name (or logo) as a trademark and domain name as soon as possible. However, if someone beats you to it, you don’t necessarily have to throw in the towel!

KPMG Law will gladly advise you on the protection of your intellectual property rights.

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