“Brandjacking” refers to the deliberate act of a group or individual publicly taking possession of a brand that’s not their own in order to acquire the brand’s equity. It’s a common issue in the business world and can contribute to a host of problems for a brandjacking victim including;
- Identity issues
- Financial problems including impact on sales/profits
- Bad publicity
- IP theft
Let’s explore some of the tactics of brandjacking below:
Domain Address “Squatting”
Also known as “URL squatting” or “cybersquatting” which is when another business purchases domain names related to your brand and/or trade mark to ‘hold’ or sit on these web addresses. It is commonly an act of bad faith, particularly in the context of brandjacking, in order to prevent the authentic brand from holding its own related domain names and to profit from the original brand’s good reputation in the marketplace.
In Australia if you come across another business holding your domain name, it’s possible to reach out directly to them yourself to resolve the issue or to lodge a complaint with auDA (.au Domain Administration). auDA is the regulatory body for domain name disputes within Australia. Alternatively a commercial lawyer may be able to assist.
Counterfeit Products
Counterfeit goods are a serious issue for many brands. As a global industry worth $1.2+ trillion, it affects food, pharmaceutical products, consumer goods, designer fashion, dietary supplements and even luxury cars.
Legally speaking, counterfeit goods are considered the most extreme form of illegality compared to “infringement” or a “knock off.” [Source: The Fashion Law 2018]. They undermine resources poured into starting a business, registering trade marks or designs and the investments required to build up and maintain a successful business. Check out our blog article on Legal Fakes, Counterfeit Products & Superfakes here.
Optimising Search Terms Related to the Brand to Redirect Business to the Brandjacker
This is when a business optimises search terms related to the original brand in order to redirect business to the brandjacker. It can take away valuable internet users and potential customers from reaching the original brand first.
Buying the Brand’s Search Terms on Google Adwords
This video from SBS Finance offers a brilliant explanation on the effects of brandjacking when it comes to Google Adwords.
It was shared in 2018 on local thai business Fusiopia (which no longer trades) who spent thousands of dollars on marketing and advertising. They partnered with Menulog to increase business and later discovered that Menulog were using their brand name on Google Adwords.
Check out the episode below:
Imitating the Brand on Social Media
When another business imitates a brand on social media it can cause a number of issues including (but not limited to) trade mark infringement, damage to the original brand’s reputation, customer confusion in the marketplace, and even potential loss of sales.
Using a Brand’s IP
When a business uses another brand’s intellectual property (IP) without permission, this is considered “intellectual property infringement.” There are many issues arising from IP infringement including legal consequences (and the costs associated with enforcing these) and brand damage. Repeated unauthorised use of a brand’s IP can also dilute the distinctiveness and value of the original brand.
Effective Strategies Against Brandjacking
There are many effective legal strategies your brand can employ in order to protect it. This can include any of the following:
Trade Mark Protection
By registering a trade mark for your brand name and/or logo, you have greater legal protection to pursue an individual or business for trade mark infringement.
Cease and Desist
A Cease and Desist letter is a document sent to an individual or business to request harassing or infringing behaviour to stop (“cease”) and to not continue (“desist”). ⠀
The letter usually states that if the offending behaviour continues or specific actions aren’t taken by a specified date, further legal action may/will be taken.
Cease and Desist letters are very common in intellectual property/copyright disputes but they can also be used for:⠀
- Defamation⠀
- Personal harassment⠀
- Infringement of your commercial rights ⠀
- Infringement of your rights in general
For further reading, check out our blog article on Cease and Desist letters here.
Adopt a Robust IP Strategy
Developing an IP strategy requires an understanding of the intellectual property your business has. You can do this by;
1. Complete an IP Audit to identify the IP your business has. Ensure your IP rights are protected through registration or active management.
2. Develop an IP Asset Register to keep track of all your assets. Having this information consolidated into one place can ensure the effective management and strategic commercialisation of each asset.
For further reading, check out our blog article on why your business needs an IP strategy here.
At Litton Legal we can assist you in protecting your brand. Get in touch with our legal team of experts here.
