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Copycats – What If Someone Copies The ‘Vibe’ Of Your Gym?

In the fourth of our article series  providing legal guidance for those in the fitness industry, we’re sharing more advice from Scott McKenzie from Mills Oakley. This time he’s focusing on what to do if a copycat tries to copy the ‘vibe’ of your gym. 

It can be problematic attempting to prevent others from copying the ‘vibe’ of your gym, given that it’s difficult to receive intellectual property protection for the use of common phrases such as “Today’s Woman”, which is more of a general statement and is not business specific. Intellectual property law will provide you with protection against competitors, however you will need to strategically consider how to protect your brand.

Case: Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd

In this case, Fernwood sought injunctions to restrain Today’s Woman Health and Fitness from representing that their health and fitness centre had any connection, affiliation or association with fitness centres run or franchised by them.

Fernwood based its case on ‘passing off’ and ‘misleading or deceptive conduct’, which were considered as follows:

  1. Misrepresentation: the Court was not satisfied that there was a serious question to be tried as to whether the decor, fixtures and fittings and colour schemes used in Fernwood’s fitness centres were distinctive of their brand in the minds of patrons or potential patrons.
  2. Passing off: the Court was not satisfied that Fernwood’s use of the words “Today’s Woman” is expected to be a reference to their brand. It was a common phrase and not distinctive.

As a result of the above, the Court dismissed both claims in their entirety.

In conclusion

The decor and layout of a gym is similar to your weekly workout schedule. It may be something that you put a lot of time and effort into refining, but there is little that you can do to stop others from copying it. That being said, strategic intellectual property advice can assist you to help create some barriers so that your gym isn’t entirely replicated by a jealous competitor.

For a complimentary discussion about any issues that this may cause for you contact Scott McKenzie from Mills Oakley on 03 9605 0077 or via email.

To read previously published articles in this series click the links below:

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