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Battle of the BODs

Sophie Guidolin, #fitstagram guru and registered owner of the "BOD" word mark, is shaping up for a showdown against former Miss Universe Australia and social media star Rachael Finch, over who has the most Instagram followers Finch's use of the acronym "B.O.D" on her new fitness apparel range, Body of Dance.

Guidolin alleges Finch's use of the acronym infringes upon her word mark and will likely mislead consumers into thinking the clothing line is associated with Guidolin's brand (breaching s 18 of Schedule 2 to the Australian Competition and Consumer Law). Guidolin also made an application for an interlocutory injunction against Finch to prevent her from launching the B.O.D clothing range in Myer stores in March 2018.

Hanging by a thread

In order to grant interlocutory relief, the Court must be satisfied that the balance of convenience favours the granting of such relief when considering the life cycle of the products and any potential impact it may have on either party.

Justice Perram considered four factors when deciding on the balance of convenience. Firstly, although there may have been an arguable case for an injunction to be granted, Justice Perram deemed it to be weak at best. Secondly, he considered Guidolin's delay in bringing the application and the claim that her company first became aware of Finch's clothing range in December 2017, finding that her company was most likely aware of Finch's use of "B.O.D" since October 2017 (#instastalking—we've all done it) but decided to "sit on their hands". Thirdly, Justice Perram found that Guidolin's BOD-emblazoned apparel line is limited when compared with the product range to be distributed by Finch. Finally, he took into account the fact that an injunction would render Finch's already branded apparel worthless.

#healthycompetition

After considering these four factors, Justice Perram dismissed Guidolin's application for an interlocutory injunction. With the trade mark infringement case due to return to Court in early 2018, consider this case officially #followed.

For Justice Perram's full judgment on the claim for interlocutory relief, click here.




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