In the media
ACCC investigates allegations of rotten conduct in
WA's free-range egg industry
Peter Bell is managing director of Golden Eggs, has been
providing reports to the ACCC since 2008 alleging some operators
have been labelling barn or caged eggs as free-range. Mr Bell and
other local producers are fighting a price war between national egg
suppliers and supermarkets, and alleged malpractice is not helping
the situation (13 May 2019).
More...
Vegan labelling debate heats up over plant-based
'Tuno'
Plant-based products are flying off the shelves in
Australia but there are concerns that labels could be blurring the
lines for consumers. But while it sounds innocent enough it seems,
Seafood Industry Australia Chief Executive Jane Lovell claims the
labelling is teetering on being false and misleading (08 May 2019).
More...
Bega wins long-running legal battle against US food
giant Kraft
Australian food brand Bega has prevailed in a long-running
legal battle against US food-giant Kraft, winning exclusive rights
to use trademarked yellow labelling on its peanut butter. Kraft
took Bega to court, alleging they were engaging in misleading or
deceptive conduct by using the packaging (02 May 2019).
More...
ACCC proposes to revoke RPM notification
The ACCC has issued a draft notice proposing to revoke a
resale price maintenance notification lodged by Meredith Dairy. The
RPM conduct notified would prevent retailers selling its goat
cheese products below a specified price (01 May 2018).
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Disrupting competition law: do digital markets require
new legal tools?
What does the growth of digital markets mean for
competition law and policy (01 May 2019).
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Are too many corporate mergers harming consumers
The competition watchdog has the power to begin formal
proceedings to block a merger if it is judged to give the merged
entity too much market power. In reality, however, the regulator
opposes very few acquisitions (01 May 2019).
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Alleged false or misleading and unconscionable conduct
by Quantum Housing
The ACCC has instituted proceedings in the Federal Court
against Quantum Housing Group Pty Ltd (Quantum)
alleging unconscionable conduct and false, misleading or deceptive
representations to investors and property managers about its own
rights, as well as the potential losses investors would face if
they did not use Quantum's approved property managers (29 April
2019).
More...
Cases
Kraft Foods Group Brands LLC v Bega Cheese Limited (No
8) [2019] FCA 593
CONTRACTS – whether the first applicant or the
respondent owns the "Peanut Butter Trade Dress" currently
used by both the respondent and the second applicant in Australia
in conjunction with their respective peanut butter products –
where respondent brings cross-claim asserting entitlement to the
trade dress – what trade dress designates to consumers
– how goodwill inures to an entity – how an
unregistered trade mark is assigned or transferred – whether
goodwill in the trade dress inured to the benefit of the first
applicant or the respondent – whether the respondent acquired
the trade dress from Australian subsidiary – whether right of
Australian subsidiary to use the trade dress was as mere licensee
– significance of control of the business and operations of
the Australian subsidiary by parent company – whether the
trade dress only a diagnostic cue for brand name owned by parent
company – whether the trade dress was an inseparable part of
the business of the Australian subsidiary incapable of being
assigned under the common law of Australia without assignment of
the underlying business – proper construction of agreements
effecting a "spin-off" or restructure of parent company
of first applicant – where agreements governed by New York
law – evidence of New York law.
CONSUMER LAW - whether applicants or respondent contravened the
Australian Consumer Law (ACL) or engaged in
passing off by selling their respective peanut butter products in
conjunction with the trade dress – whether television and
radio commercials broadcast by the respondent were misleading or
deceptive – whether second applicant published misleading
press release – whether provisions of "spin-off" or
restructure agreements relevant to ACL or passing off claims
– proper interpretation of such agreements – whether
respondent breached terms of such agreements.
COPYRIGHT – whether respondent's use of first
applicant's "shippers" by placing its peanut butter
products in them without permission and selling to supermarkets
constitutes trade mark infringement under s 120(1) of the Trade
Marks Act 1995 (Cth).
Competition and Consumer Act 2010 (Cth), Schedule 2, ss
4(1), 4(2), 17, 18, 22, 109, 210(1).
Trade Marks Act 1995 (Cth), s 120(1);Trademark Act of
1946 (USA), s 43(a).
H20 Learning Pty Ltd v Swim Loops Pty Ltd t/as Jump
Swim Schools [2019] NSWDC 165
TRADE PRACTICES – misleading or deceptive
conduct – franchise agreements – characterisation of
pre-contractual representation about the estimate for completion of
operational swim schools – whether estimate constitutes a
promise or a prediction – whether estimate is a
representation as to a future matter – whether deeming
provision (s 4 of Australian Consumer Law) applies – whether
individual defendants primarily liable for any misleading conduct.
DAMAGES – whether causal connection between pre-contractual
representation and loss or damage – whether action
subsequently released.
Xu v Wang [2019] VSC 269
RECOGNITION OF FOREIGN JUDGMENT – Concurrent
proceedings in Australia and the People's Republic of China
– Plaintiff obtained judgment in a court in the People's
Republic of China without notifying defendant or this Court –
Whether plaintiff entitled to recognition of judgment obtained in
secret – Whether defendant submitted to the foreign
jurisdiction – Whether foreign judgment obtained by fraud
– Whether defendant denied natural justice – Whether an
abuse of process – Evidence Act 2008 (Vic) s 174
considered.
BREACH OF CONTRACT – Personal loan from plaintiff to
defendant – Loan monies advanced by contra agreement –
Consideration – Whether total failure of consideration.
MISLEADING OR DECEPTIVE CONDUCT – Representations made to
defendant about performance and profitability of business –
Representations made to defendant about plaintiff's involvement
in business – Representations made to defendant about
defendant's involvement in business – Whether misleading
or deceptive – Whether statements in the ordinary course of
business – Whether statements of opinion – Whether
statements as to future matters – Whether representations
attributable to plaintiff – Whether representations caused
defendant to invest in business – Competition and
Consumer Act 2010 (Cth) Sch 2, ss 4, 18; Australian
Consumer Law and Fair Trading Act 2012 (Vic) s 8
considered.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
