It’s pouty lips at ten paces in the latest radio war.

Radio station Mix 106.5 FM recently underwent a ‘reinvention’. It renamed itself ‘Kiis FM’ and employed the controversial duo Kyle and Jackie O.  Seemed like a great plan at the time, however with over 30 stations called Kiss FM around the world, 106.5FM didn’t win any points for originality. Particularly when Kiss FM, an established dance music radio station in Melbourne, got wind of the name change and applied to trade mark its own name.

106.5FM was behind the ball and applied to register their trade marks, KiisFM1065 and 1065KiisFM, 13 days after Kiss FM lodged its application.

What does this mean? Kiss FM’s application has priority because it got in first.  If its application is successful, 106.5FM will probably oppose it.

If Kiss FM ends up being able to register the trade mark despite the opposition, 106.5FM’s applications may be rejected on the basis that their marks are deceptively similar to ‘Kiss FM’.  Unless we’re mistaken, Kiss FM and Kiis FM sound the same, and they are both radio stations. It is reasonable to expect people would be confused.

Once a trade mark is registered, the owner can use the mark exclusively and has rights to claim against others if the trade mark is infringed. So Kiss FM will gain a huge benefit by having the registered mark.

But that’s not all. Having been in the radio business since 2005, Kiss FM has grounds to argue that 106.5FM is misrepresenting that it has a connection with Kiss FM and as a result it is damaging Kiss FM’s goodwill or reputation. On this basis, Kiss FM can sue for passing off, as well as under the Australian Consumer Law for misleading or deceptive conduct.

All in all, we’d rather be Kiss than Kiis. As for Kyle and Jackie O, the less said the better.