Beware of the Dog

Name: Kristy Andrusko

Business: Pet care and accessories

Industry: Retail

IP smart since: 2004

Kristy Andrusko is now barking all the way to the bank on the success of her pet care and accessories business, Puppy Phat, but it hasn’t always been a walk in the park. Kristy learned the hard way that without thorough research and preparation, setting up a business can be a very costly experience, both financially and emotionally.

Kristy originally opened her business in 2003 under the business name of Lush Puppy. Lush Puppy was born out of Kristy’s desire to fill a niche in the market for funky pet care products, including collars, beds and pet fashion. Kristy started up a wholesale business selling her products to retail outlets, before opening her own 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 Kristy’s start up journey. With this exposure, Lush Puppy had a huge beginning, selling out of many products within the first couple of weeks.

However, success turned to stress, when, after ten days of operation, Kristy was sent a letter by the legal advisor of another business informing her that her business name was infringing another company’s registered trade mark, and that legal action would result if she didn’t cease trading under the Lush Puppy name.

“The irony of the situation was that when I first set up my business I kept thinking to myself, I’m going to have to trade mark the Lush Puppy name so no one rips me off, then someone sends me a letter saying that I was trying to rip them off,” Kristy said.

“I didn’t even know that this company existed, let alone have any intention of ripping them off, so I was devastated when I received the letter!”

Kristy wasn’t aware that a business name doesn’t provide any protection for her brand name - only a registered trade mark can provide that level of protection, Australia wide.

“I didn’t even stop to think that I might be infringing a registered trade mark with my Lush Puppy name. I assumed that when the business name search was done, I’d be told if it would cause any problems,” Kristy said.

“It wasn’t until I looked at how I should have set up my business, that I saw all of the additional checks that I should have done—checks that would have saved me a heap of time, money and stress.”

Kristy wasn’t aware of IP Australia’s Business Name Application Search Service (BASS), which for a small fee will check for any very similar pending or registered trade marks listed on the trade marks database at that point in time.

Kristy sought legal advice immediately, but the news wasn’t good.

“My lawyer pretty much told me that I could fight to keep trading as Lush Puppy, but my chances of winning were slim as my opponents did have a registered trade mark and a solid reputation for trading under the name and it would cost me a lot of money—money I wanted to spend on product development and marketing,” Kristy said.

“I also knew that even if I did win, I would never be able to register the Lush Puppy name as a trade mark and wouldn’t be able to expand; and this other company would always contest my Lush Puppy trading name.”

So Kristy made the difficult decision to abandon the Lush Puppy business name, which meant destroying all of her existing Lush Puppy stock, closing down her website and deregistering her business name. Kristy also lost her wholesale business and all of the goodwill generated from Lush Puppy’s exposure on Bread TV.

“The next couple of months went by in a real blur,” Kristy said. “I was extremely embarrassed about the situation, and didn’t know what to do.”

But Kristy showed tenacity, deciding to move forward from her mistake and rebrand Lush Puppy, leaving no intellectual property stone unturned along the way.

“I had to think of a new name really quickly so I could get my stock redesigned and manufactured,” Kristy said.

With the pressure on, Kristy came up with Puppy Phat - a name that she thought her customers would be able to identify with. Once her lawyer conducted trade mark searches for her, the first thing Kristy did was apply to register the Puppy Phat name as a trade mark.

“I’ve applied for ‘Puppy Phat’, and have also applied for a couple of other names that I’m thinking of expanding with in the future,” Kristy said.

“At the time I didn’t understand what the big deal was, but through this experience I’ve become very protective of my own brand, and I know that if anyone else used my name, I’d go after them as well.”

Kristy has learned a lot about intellectual property from her experience, and she admits that it has forced her to make changes for the better. Her advice to others is to be IP smart from the start and to make sure that all checks are done before applying for a business name.

“A business name is a legal requirement which is in place more to protect the consumer than the business owner,” Kristy said. “Business owners need a business name to operate, but to protect yourself, your business and your brand; a registered trade mark is the important thing.”