11 July 2017

When Tori Best tried to register the name and logo of her Melbourne-based dairy company in China, she found that someone else had got there first.

Someone else had already registered the name Farmer Brown’s Dairy Company as well as the company’s flying cow logo with the China Trade Mark Office, or CTMO.

Best had spent months creating the Farmer Brown’s logo with the intention of selling dairy products in China to take advantage of growing consumer demand for Australian food.

But before her business got underway in China she discovered a Chinese website was already selling ice cream with the identical Farmer Brown's logo, which it claimed was made from 100 per cent Australian milk.

Trade mark theft does happen in China

Farmer Brown’s is one of several Australian companies to have discovered that someone else has registered their trade mark in China before they have had a chance to.

“The message for me is that if you're an Australian business, be very mindful of your intellectual property and register your trademark before showing anybody because they were so quick. It's not even out in the public domain,” Best said at the time of the dispute.

The story highlights the importance of registering your business name and your logo even before you begin operating in China and being very careful until you have trade mark protection.

The Farmer Brown’s name and logo theft occurred even before the company started selling products. Best suspects the logo leaked after her husband John sent their business plan to an associate for advice.

“It wasn't advertised in the public domain so it was within the networks John had established, not someone he deals with directly,” Best told the ABC.

“It was identical. They were so fast.”

Seek trade mark protection as early as possible

China uses what’s known as the first to file rule. This means that that if someone else applies for your trade mark in China, they will usually end up owning it, even if you have been using it before in Australia.

If someone else owns your trade mark, they can attempt to stop you from producing and selling your goods under that trade mark or make you buy the trade mark back from them.

If the trademark stays unused for three consecutive years, you may apply to the CTMO to have the trade mark revoked.

Fortunately once you apply for a trade mark in Australia, you have a six month window to secure trade mark protection in China when using the Madrid Protocol.

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