Below is an excerpt from John McKeown’s September 2016 Monthly IP Bulletin.
A brand has to be linked with a business strategy. The brand strategy must support the business strategy. As many have observed brand thinking should not begin with a product or a product class but with a need. For example, a green and healthy lawn is the starting point not grass seed. The product or service must be the primary brand communication. To be effective, the offering must provide competitive functional performance.
Control of distribution channels can be an important element of brand management strategy. For example, a brand owner may enter into multiple licences that grant the exclusive right to distribute branded products in specified areas while prohibiting sale outside those areas. However, with new technologies there has been a proliferation of new channels of distribution and some existing channels are fragmented. At one time some banking services were only available at a bank; now they are available at branches, by telephone or through the Internet. This phenomena is referred to as the omni channel marketplace.
The control of distribution may also require refusing to supply products from time to time. In some cases there are constraints on this course of action. The Competition Act provides that a person who, despite being willing and able to meet the usual trade terms of distributors of a product that is in ample supply, is unable to obtain adequate supplies of the product because of insufficient competition among distributors, can apply to the Competition Tribunal for an order compelling the distributor to supply the product on usual trade terms. In order to obtain such an order the affected person must first obtain leave from the Tribunal to bring an application, by showing that the refusal to supply either precludes the applicant from carrying on business or has a direct and substantial effect on its business and that the refusal to deal is also having or is likely to have an adverse effect on competition in a market.
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These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.