A delay in protecting your brand could mean a fight to save it.
As the Australian Radio Network’s (using Clear Channel’s) KIIS-FM (pronounced Kiss FM) enters the Australian market via a rebranded Mix 106.5 FM, niche Melbourne dance music station, KISS FM has ARN in its legal sights.
Melbourne’s Kiss has taken a robust approach to brand protection and sent a cease and desist letter to the Australian Radio Network demanding that ARN not infringe its “common law trade mark” rights. Melbourne KISS couched the letter in terms defending its unregistered [common law] trade mark rights and general intellectual property rights. Irrespective of the different spelling Melbourne KISS undoubtedly finds the name confusingly similar.
Melbourne Kiss had been using the name since 2001 and only on 12 November 2013 had it started to file its trade mark registration for the “KISS FM” mark. However, a former mark expired in 1999. ARN Kiis has also filed two trade mark applications for “KiisFM1065” and “1065KiisFM” but only got those filed on 25 November 2013.
Neither ARN Kiis nor Melbourne KISS FM has a formal registered trade mark granted by IP Australia in any of their applications. It is open to each to oppose the other’s trade mark applications.
Priority is important when registering trade marks, but also important is money to sustain a legal battle. Melbourne Kiss faces a tough fight against a well-funded competitor with a history of rigorously enforcing its KIIS brand. It remains open to see if UK’s KISS FM (also a dance music radio brand) weighs into this battle on one side or the other.
ARN plans to use the Kiis brand only in Sydney – but whether they’ll put that in a legal document preventing a national roll out of the brand seems unlikely. Hopefully a settlement they can kiss and make up (sorry) and reach a settlement. Both should not be distracted from producing great content.
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