Intellectual Property Analysis of Lush Puppy
Prepared by: Yuwat Khuwimon
SID: 3872
Date: 07/09/2016
This report is made to identify the issue intellectual property problem the company named Lush Puppy along with cause of the problem and to draw some recommendations to solve the problems. Let’s start with the company’s background, Lush Puppy is opened in 2003. It was born out of the owner’s, Kristy Andrusko, desire to fill a niche in the market for funky pet care products, including collars, beds and pet fashion. It was started up as a wholesale business selling the products to retail outlets. Then Kristy had opened the retail store in Daylesford, Victoria. In 2004, Lush Puppy’s retail stores launched with much bravado, as Channel 10’s small business program, Bread TV, followed the owner’s start up journey. With this exposure, Lush Puppy had a huge beginning, selling out of many products within the first couple of weeks.
Issue of intellectual property problem the company is facing is about registration of trademark in Part 7—Registration of trade marks. The company had received the letter from the other company said that the business name was infringing another company’s registered trade mark, and that legal action would result if the owner cease trading under the Lush Puppy name. Caused the owner was devastated. Because of when the owner first set up the business she just kept thinking to herself that she was going to have to trade mark the Lush Puppy name but she wasn’t aware that a business name didn’t provide any protection for her brand name, only a registered trade mark could provide the level of protection, Australia wide. The owner lost heap of time, money and stress. The owner wasn’t aware of IP BASS, which for a small fee will check for any very similar pending or registered trademarks listed on the trade mark database at that point of time. She immediately sought legal advice but her chances of winning were slim and it would cost her a lot of money for keeping trading as Lush Puppy.
Cause-Effect Model
Cause Effect
- Lack of information about intellectual property
- To rename or register business name
- Fight to keep trading as Lush Puppy name - Business name infringe another company ‘s registered trade mark and legal action would result
- Destroy all of the existing stock
- Close down the website
- Deregistering business name
- Lost wholesale business and
- Lost all of the goodwill generated from Lush Puppy’s exposure on Bread TV
- Slim chance of winning
- Solid reputation for trading under the name
- Cause a lot of money
For this issue, the owner should compare about gaining advantage or being adverse. The owner had a legal advice to help conduct trade mark searches and then the owner decided to move forward from her mistake and rebrand Lush Puppy and renamed as Puppy Phat really quickly. She could get her stock redesigned and manufactured. But first of all, she applied to register the Puppy Phat name as a trade mark. She realised that if anyone else used her name, she’d go after them as well.
Relevant legislative requirement…
Division 1—Initial registration
68 Obligation to register
(1) The Registrar must, within the period provided under the regulations, register a trade mark that has been accepted for registration:
(a) if there has been no opposition to the registration; or
(b) in a case where there has been an opposition:
(i) if the Registrar’s decision, or (in the case of an appeal against the Registrar’s decision) the decision on appeal, is that the trade mark should be registered; or
(ii) if the opposition has been withdrawn; or
(iii) if the opposition has been dismissed under section 222 or the regulations (if any) made for the purposes of subsection 54(2).
Otherwise, the application for the registration of the trade mark lapses.
Note: Applications may also lapse if an application for registration is opposed and a notice to defend the application is not filed: see section 54A.
(2) On registering the trade mark, the Registrar must give it a number by which it may be identified.
69 Registration—how effected
(1) The trade mark must be registered:
(a) in the name of the applicant for registration; and
(b) in respect of the goods and/or services specified in the application at the time of registration; and
(c) subject to the conditions (if any) and the limitations (if any) imposed by the Registrar in accepting the application for registration or deciding to register the trade mark.
The Registrar must enter these particulars in the Register.
(2) The Registrar must also enter in the Register:
(a) a graphical representation of the trade mark; and
(b) its registration number;