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‘Finfluencer’ infringed trademark, court finds
The Federal Circuit and Family Court of Australia has determined that a financial adviser and finfluencer infringed the trademark of a fellow adviser.
Keith Ford
Editor’s note: This story first appeared on Lawyers Weekly’s sister brand, ifa.
Ms Korolak claimed that, from around 12 February 2020 to around May 2021 and beyond, Ms Campbell and SASS Financial infringed Ms Korolak’s registered trademark. Additionally, she alleged that by using the words “Financial Foreplay”, Ms Campbell and SASS engaged in conduct that was misleading or deceptive.
In February 2017, Intellectual Property Australia granted Ms Korolak the trademark for the term “Financial Foreplay”, which is branding that Ms Korolak had been using since the release of her book, Financial Foreplay, in 2009. This included the use of YouTube and Instagram accounts under the name “Financial Foreplay”.
Ms Campbell launched her podcast, SugarMamma’s Financial Foreplay, in June 2020. She subsequently renamed the podcast to SugarMamma’s Financial Fireplay before moving to its current title, SugarMamma’s Fireplay.
In his determination, Judge Nicholas Manousaridis found that Ms Campbell, by producing and making available to the public the Financial Foreplay podcasts, she had “provided services that constituted ‘advisory services relating to finance’, ‘advisory services relating to financial matters’, and ‘advisory services relating to money management’, being services in relation to which the trademark has been registered”.
“The respondents, in relation to those services have used the words, ‘Financial Foreplay’, being words that are identical with the trademark, and the words ‘SugarMamma’s Financial Foreplay’, being words that are substantially identical to, or deceptively similar to the trademark. For these reasons, therefore, there has been an infringement of the trademark,” Judge Manousaridis said.
While Ms Korolak has sought damages for the infringement, Judge Manousaridis has not made any orders related to costs.
“I will not make any order in relation to costs until after I afford the parties an opportunity to make submissions,” he said.
“The only orders I propose to make is to direct the parties to file and serve submissions on the orders I should make to give effect to these reasons, and on costs.”
Ms Korolak said Ms Campbell had previously received two adverse examination reports from IP Australia.
She added that she has taken further action through the Financial Advice Association Australia (FAAA), claiming that Ms Campbell breached the Code of Conduct.
“As a licensed financial planner and member of FAAA, Ms Campbell is bound by a Code of Conduct to act with integrity, objectivity, and fairness,” Ms Korolak told ifa.
“As a result of this litigation, a complaint has been raised and there is an open investigation by the FAAA into this matter.”
