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It sells billions of dollars worth of properties a year but national real estate group The Agency has lost a court battle with a rival over lucrative property of a different kind: its logos and branding.
The Agency Group sued the company behind nascent northern beaches real estate business The North Agency in the Federal Court, claiming it had infringed its trademarks, including an “A”-shaped logo, and engaged in misleading or deceptive conduct.
The Agency Group took the company behind The North Agency to court over its branding. Credit: iStock and Supplied
It pointed to The North Agency’s website, Instagram account and profile pages on real estate websites and argued consumers on Sydney’s well-heeled northern beaches might be confused about whether the two businesses were linked.
The court heard The Agency Group made sales in the northern beaches region totalling $239 million between the financial year ending June 30, 2018, and the end of March 2023.
In a judgment delivered on Wednesday, Justice Ian Jackman dismissed The Agency Group’s lawsuit.
The freshly minted North Agency launched its website and hung signs at its Dee Why office in March, while The Agency brand has been in use since 2016 and the group has offices in Manly and Neutral Bay.
Two screenshots from The Agency’s website, top, tendered in court, and, bottom, a screenshot from The North Agency’s website.
Jackman said The Agency Group had promoted its business on its website using registered trademarks featuring the words “The Agency” and the letter A “against a dark background, such as a dark sky at dusk”.
Meanwhile, the company behind The North Agency promoted its business on its own website using its name and an N logo “against a dark background, including a dark sky at dusk”.
But Jackman said it was “fanciful” to suggest The Agency had a distinctive reputation in the appearance of its website, “consisting of the use of a dark background, particularly including a dark sky at dusk” because a dark background was “an obvious and commonplace way of making light coloured lettering stand out”.
A comparison of the agencies’ Instagram profile photos when the court case was filed.
Jackman accepted evidence given by the directors of the company behind The North Agency that they did not regard The Agency as a key competitor and “The Agency Group did not cross their minds at all in the process of deciding on the name or the branding for their new agency”.
The ASX-listed Agency Group sold 5709 properties totalling $5.9 billion in the financial year ending June 30, 2022, the court heard, and received $72.7 million in revenue.
The group operates 26 offices in NSW at 21 locations and uses registered business names at various offices, including The Agency North West, The Agency Northern NSW and The Agency Upper North Shore.
The rival North Agency, by contrast, had one office and six employees at the time of the court hearing this month.
Jackman said there were “fundamental difficulties” with the allegation The North Agency used its name and logo in a way which was deceptively similar to The Agency’s trademarks, and he did not regard potential consumer confusion about a link between the businesses as “a real risk”.
“I regard the use of the word ‘north’ as a striking aspect … which points strongly against any real likelihood of confusion,” Jackman said.
It would give “an unwarranted monopoly” to The Agency Group if rival businesses were unable to use “the” or “agency” in their names, he said.
Jackman said the N and A logos used by the rival agencies, including on Instagram, were also “visually distinct”, with the N logo conveying “the strong impression of a northerly direction” while the A logo conveyed “the impression of a house”.
Jackman rejected the trademark infringement claim and said The North Agency’s conduct was “neither misleading or deceptive, nor likely to mislead or deceive”.
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