Date: Thu, 16 Aug 2001 16:24:16 +1100
Subject: Re: Balloon bouquet - to use or not to use
From: Don Dixon <dond@bizballoons.com.au>
To: Balloon Headquarters <balloondeco@balloonhq.com>

G'Day from Downunder,
Some on this list seem to be confusing the terms "copyright" and "trade
mark" to be one and the same. I am not an expert. But I'll try to explain
the distinct difference - as I understand it. It could help many understand
the wise and commendable BUSINESS STRATEGY behind registering a trade mark.

"Copyright" protects an author or artist from a person using their written
work without permission. Very different to a registered trade mark. The only
similarity, is that they each have international laws of protection.
"Patents" are different again. They refer to design or assembly of new
product inventions.

One can not offer to rent "Donald Duck"TM costumes because it is a
Registered Trade Mark to the Disney Corporation. The words donald and duck
are allowed to be used by ANYBODY at any time, PROVIDING .... they are not
used to derive income by association with the Disney character. Disney spent
MILLIONS developing that character! If you buy property in your town, don't
you have the right to fence it to keep others out? You paid for the right to
deny access to one and all (if you choose)! Right?

Anyone can apply to register a Trade Mark - not just the multinationals or
franchise chains. Dolly has been granted an internationally recognised
Registered Trade Mark for "Celebrating"TM. (her business name) Why did she
do that? Answer:- Because, due to years of advertising investment, the
company name has become a BUSINESS ASSET! It's worth something to her if and
when she decides to franchise or sell the business to a potential buyer. By
having a Reg'd TM, she can deny others in the balloon and party industry in
16 countries from using her business name. Guess how many individual
businesses use the name Balloonerama, Balloonatics, Partyworld and Balloon
Affair?

If she were to allow anybody and everybody to use the term "Celebrating" to
sell balloons and/or party products, she could squander any true value
associated with a name she has worked for many years to promote in the mind
of consumers in this country whenever they might think ... "balloons". Of
course, it only works when a business owner invests a lot of money to
ADVERTISE the trade mark. Marketing people refer to it as "Branding". An
extremely valuable marketing tool. If I say, "hamburger" , most of you will
instinctively think "Big Mac"TM due to extensive advertising campaigns.

I can write the words "balloon" and "bouquet" together, and NOT be liable to
litigation, providing I am not using the words as a term to generate income
for me or my business. Example: If I used the words in a women's magazine
article to tell readers  .... "how much my sister appreciated the balloon
bouquet our mother made for her wedding day ..... ", then it is unlikely to
be in breach of Trademark laws (as I understand). However, my entire written
article for that magazine would be protected by "copyright" law.

Trade Marks were created to be used by business owners as a business
marketing tool. NOT as a means of generating income via litigation. The
words are "Trade" and "Mark". It's not "trade words". Litigation only
becomes an option when YOUR clever marketing tool (words or artwork used to
create a recognisable "mark" in the marketplace) is being used unlawfully by
others to earn money for THEIR benefit.

We're in Australia, and we have had our solicitor (lawyers) confirm:-
We could be in considerable trouble and liable, by International Trademark
agreement between Australia and 15 other countries (incl the USA), if I went
and intentionally printed the words "balloon bouquet"TM to promote our
balloon products. It's against the law! Because I know that, and we will not
risk the survival of our business future on two words, we'll try to outsmart
the clever competitor who removed our option to use that term in our
advertising material.

Why not do what many others do? They sometimes write "bouquet of balloons"
when referring to a delivery arrangement in trade magazines or promotional
advertising material. That way, they can't be sued. Another alternative is
to use the popular QBN term "balloon delivery arrangement". What about an
even better idea???? Create your own "branding" for your unique bouquets.
Call them "DELIVEROONS" and register it as a trade mark if and when you find
the public have identified with YOUR term. YOUR PROPERY! Then YOU will have
a business ASSET worth selling. Touche!

Because I am not aware of any competitor having applied to register "cloud
9", "spiral arch", "balloon decor" or "enchanted bubbles" ... all of us are
within the law to use those terms, IF and when we find those terms to be
suitable for our promotional material. I could apply to register them
tomorrow, if I thought they were of some value to me. If the originators of
those terms or names decide to apply for a Registered TM .... good luck to
them!  THAT'S BUSINESS! But a word of warning:- Registering a TM is costly
and no simple matter. Your business must show HARD EVIDENCE in many forms,
of the trade mark applied for, as being UNIQUE to your business at the time
of application. 

Free enterprise business is all about COMPETITION. If your competitor can
legally corner a market segment by use of clever "branding".... I say,
"congratulations." But as a competitor myself, I'll also be anxious to
emulate (or better) their commercial strategy. Don't forget; The law gives
you the same rights it gives your competitors.

Don & Dolly Dixon CBAs
Sydney - Australia
Don - http://www.bizballoons.com.au
Dolly - http://www.celebrating.com.au
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