Ensuring your Soft Drink Brands Sparkle not Fizzle

Sharon Givoni Consulting Food Law

This article examines some dos and don’ts when it comes to trade mark protection for beverages considering real life cases concerning brands such as “Cranberry Classic”, “Crantastic”, “Ruby’s Red”, the “NES” family of Nestle trade marks and Boost juice marks.

The strongest form of legal protection you can have for your brand in Australia is by registering it as a trade mark. While trade mark registration is not compulsory, it can enable you to stop third parties from using “deceptively similar” or “substantially identical” names in relation to the goods or services for which you have registered your mark.

If you have not obtained a trade mark registration, to protect your brand from “copycats” you will generally need to rely on what’s known as the law of “passing off” or proving misleading and deceptive conduct (under legislation such as the Trade Practices Act). This generally requires you to demonstrate that you have a reputation in the brand and the use of the brand by someone else is likely to cause deception or confusion. This can be a costly and time consuming process.

Having a trade mark registration also means that you can display the symbol ® beside the brand and this can deter others from copying it for their own beverages or similar products.