“Financial Foreplay”

Whatever that term might conjure up for you, podcaster Rhondalynn Korolak would be very pleased she had the good sense to register this suggestive brand back in 2016. It allowed her to stop a competitor using “SugarMamma’s Financial Foreplay” as the name of her competing podcast.

Without a registered trade mark, Ms Korolak would have lost her case. This highlights the importance of getting your podcast name registered as a trade mark. If you’re a podcaster and want to spend more time producing fabulous content and less time in litigation, trade mark protection is the way to go.

About the Case

In 2016, Ms Korolak registered a trade mark for “Financial Foreplay” covering financial advice services (which is what she was originally providing before she launched her podcast). Ms Campbell, the infringer, is a licensed financial planner who has published finance books and appeared in the media. In mid-2020, she launched a podcast called “SugarMamma’s Financial Foreplay”.

Ms Korolak alleged that Ms Campbell’s use of her podcast name infringed her registered trade mark. And she succeeded. Even though Ms Korolak’s registration didn’t cover podcasts, she established infringement by relying on the protection she did have for financial advice services. As a result, she was able to force Ms Campbell to rebrand.

If Ms Korolak hadn’t thought to obtain a trade mark registration, she would have been forced to rely on claims for passing off and contraventions of the Australian Consumer Law (both of which failed in this case). Reputation-based actions like these are more complex and expensive to run than trade mark infringement actions. They’re also much harder to prove. In this case, Judge Manousaridis found that Ms Korolak had not established enough of a reputation in “Financial Foreplay”. Nor was he convinced that Ms Campbell’s use of “SugarMamma’s Financial Foreplay” would have misled or deceived consumers. A trade mark registration was Ms Korolak’s sharpest weapon and she was able to establish that Ms Campbell’s use of “SugarMamma’s Financial Foreplay” infringed her trade mark registration for “Financial Foreplay”.

This situation would have been even better for Ms Korolak if her trade mark registration had covered podcast services. In that situation, it’s hard to imagine that this matter would’ve gone to court at all. Most likely, Ms Campbell would have rebranded without too much fuss.

Conclusion

Podcasters can easily riff on or rip-off the name of your podcast. If this happens and you don’t hold a trade mark registration for your podcast name, cue episode of legal drama.

Podcasters: do yourselves a favour and investigate trade mark protection for your podcast name.

Click here for Judge Manousaradis’ full judgment in Korolak v Campbell (No 2) [2023] FedCFamC2G 1222.