Three days after launching in New Zealand, Kogan Mobile received a legal letter from Spark claiming a “passing-off” breach of the Fair Trading Act (1986) and saying it reserved its right to take legal action.

Spark claimed Kogan Mobile were using brand attributes on their website similar to those Skinny had used for more than half a decade, which could be misleading to consumers.

James & Wells Senior Associate, Sebastien Aymeric spoke to the Herald about the situation. Here is an excerpt:

“Skinny most likely has a strong reputation in the colour orange in relation to mobile services so it is not unreasonable for Spark to take such preventative measures to maintain that reputation.”

Aymeric says with the way it appears today, the Kogan Mobile NZ website is playing within the rules.

“Kogan does not appear to be in breach of Skinny’s copyright; it does not appear to have copied Skinny’s website when creating/developing its own: its website is designed differently, its layout is different, and the text and language it uses is different.”

“Kogan is unlikely to be found in breach of the Fair Trading Act. Consumers accessing Kogan’s website are not likely to be confused or deceived into thinking it is somehow associated with Skinny.”

Beyond the colour scheme it’s sporting today, the site, “is clearly branded KOGAN. Broadly speaking, Kogan is not trying to pass itself off as Skinny or free-ride on Skinny’s reputation,” the James & Wells lawyer says.

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