13 February 2012

TRADEMARK IT! Identity Theft by any other Name


 This is a warning to anyone out there who thinks that QLD Government covers you when you start a business and try to do everything by their rules...you get screwed! It's called Identity Theft and there's nothing you can do about it once it's happened.
 Unfortunately, this Blog won't be about my cakes but the business of Names. A very steep learning curve.

So three weeks ago, I got up on a Monday morning and jumped on to answer client emails which is all I seem to do in my spare time. One of the few answered that morning was from a fellow called Gabriel who had asked me via email to join his free promotional wedding page "TopWeddingsAustralia". I had spent over an hour the previous week answering his "interview" via email and attached several of my cake photos to be included in the site.
  He seemed decent and polite enough in our written discussions and when I recieved the email stating that his website was functioning and the link, I was so excited I immediately jumped onto it.
  You can imagine how dissapointed and betrayed I felt when I saw a website for a lady calling herself "cake girl" who wasn't me.
  Boy - it was like a kick in the gut.
  I went straight to her site from the tab and looked at her website: so close in name to my own.
  Then I flicked back and forth in tabs to Gabriels' and couldn't spot my own...WTF?
  So I immediately picked up the phone and spoke to the Department of Fair Trading. According to the person on the phone, there wasn't much I could do.
   He checked ABN's for her and trading names: Nothing.
  There was every chance that she wasn't working from a legal kitchen.and had started the business without the required licences. If this was the case I was to write a letter to the Registrar of Business Names explaining the situation and basically telling on her.
  I didn't want to do this.
  He told me not to worry - if she tried to use the business name it would come up as "too close" in the files and not allow her to have it.
  The trouble was she already had taken up a web address that was extremely close. Using a prefix of 'the' as any librarian will tell you doesn't mean that the name is filed under T.
  This woman had used the same name as me without the prefix and as far as I was concerned she was trading under my name already!
  I thought about what the guy had said and pressed the "contact me" tab on her site. The only way to reach her was thorugh an email so I made an enquiry asking her to please call me in regards to her trading name. I wanted to know why? Why had she started using my business name? Yes, her website explained this was her nicckname but so what? It didn't mean she had the right to hurt my business!
  I jumped on Facebook and asked my Fans and Friends for help. Anoher cake decorator - Sarah Jane from Cake That was a plethora of knowledge. Armed with more information I rang IP Australia (Intellectual Property) - by this time office hours were closed...they run on Sydney time...stupid me!
  Sitting on the computer I tried to get as many details as I could but the IP site was so confusing using terminology I'd never heard of.
  A night of restless sleep followed as I hadn't done any work. I couldn't help feeling that the universe was going against me and that there was nothing I could do.
  The next morning 8am rolled around slowly. I finally managed to get through to someone at IP who basically told me what I had already gathered. I could apply for a trademark as a word, a typeface or a logo and each one cost over a $100.
  And this wasn't a certainty! I would then have to wait 3-4 months until they let me know whether the application had passed! Once they let me know if it was a positive return I would need to pay for an Australian or an International trademark on top of the money already spent.
  Now I understand...it's another way for more money to be dished out to government. What a rort!
 Fine -caught between a rock and a hard place I had no choice. I placed my applcation and wished for the best...not that it's ever helped in the past but what could it hurt?
  My head was spinning. I was over tired, feeling ill and sick of it all. Is it really all worth it? All those years of trying to get something together. Something I wanted to do, Something I thought I could be good at - out the door!
  Then I sent the lady another email...please respond! I was going out of my mind!
  I sent emails to trademark lawyers but had no response.
  I sent an email to the website creators and lastly an email to Gabriel. Explaining my dismay at having discovered this lady through his website with the same business name, in the same city, I thought he would realise what had happened and remove the website link and replace it with mine.
  But no.
  Not only did he not do this but he repsonded to my email with the nerve to say "We'll I have checked your Business names and your's is The Cake Girl, and the one in the site is Cake Girl, some sort of similarity but two completely different businesses. As for the website, your's is http://www.thecakegirl.com.au/ , and the one on the site is http://www.cakegirl.com.au/ , and if I am not mistaken these are two complete different websites." WHAT??? Completely different businesses?? How so? With a prefix of 'the'? We both make cakes. We're both in Brisbane. We're both called the cake girl!
  I'll tell you the difference!
  I have an ABN and a registered business name.
  I have been trading using this name for 4 years!
  I have worked, done the hard yards and advertised for clients - to which I now have a business which is reasonably successful.

...looking up every possible link from google to my name, I found her phone number back on the original promotional website. Upon calling, I was directed to message bank and I left the same massge as I had via email: Could she please call me in regards to the business name?
  It was approximately 5-10 minutes later that my phone rang.
  Following my explanation, she stated that "she never meant to hurt anybody" and that "it was an honest mistake" but it didn't feel like she wanted to do anything to change the situation.
  How depressing.

By the end of the week the website was still up and running and one of the lawyers I had spoken to had responded with a phone call informing me that after my call, the lady had applied for an ABN using her name - not the cake girl.
 Honest my foot!

 So with all the stress, I am now in the process of employing a lawyer to follow this through.
 With the verict being - trademark! Do it before you end up in the same situation as me. It's extra money but it's the only avenue we can take to make sure someone else doesn't come by and use all the work you've done to jump the queue.