In the media
Rex flags regional services cuts citing
'predatory' Qantas behaviour
Regional Express (Rex) says it plans to
terminate several NSW services as well as its Adelaide-King Island
route after government subsidies end in March. In a statement to
the ASX Rex deputy chairman John Sharp said Qantas Link's
launch of flights on existing monopoly routes was predatory
behaviour aimed at making it a "less formidable
competitor" when it launches its new Sydney-Melbourne (26
February 2021). More...
ASIC sues NAB for unconscionable conduct and
misrepresentations over account fees
ASIC has commenced proceedings in the Federal Court
against National Australia Bank Ltd (NAB),
alleging that NAB charged fees for making certain periodic payments
when it was not entitled to under the bank's contracts with its
customers (25 February 2021). More...
Freedom Foods hit with second class action over
allegedly misleading shareholders
Freedom Foods and its auditors Deloitte have been hit with
a second class action, with law firm Phi Finney Mcdonald alleging
the company misled shareholders by improperly capitalised certain
expenses and failed to write off certain inventory (23 February
2021). More...
ACCC's 2021 enforcement and compliance
priorities
Sales practices in Australia's domestic travel sector,
competition in aviation and the conduct of some caravan
manufacturers will be among the ACCC's compliance and
enforcement priorities during 2021, ACCC Chair Rod Sims
announced.
The speech, including the full list of the
ACCC's 2021 compliance and enforcement priorities, is
on the ACCC website (23 February 2021). More...
ACCC boss puts energy retailers on notice as wholesale
prices fall
Competition regulator Rod Sims has warned energy retailers
must pass on the sharp falls in wholesale electricity prices to
their customers, as the watchdog sharpens its focus on policing the
pricing of essential services in 2021 (23 February 2021). More...
ATO: First criminal conviction for JobKeeper fraud
Mr Raed Saleh has been convicted in the Heidelberg
Magistrates Court of three counts of making a false and misleading
statement to the Commissioner of Taxation, in order to receive
$6,000 in JobKeeper payments to which he was not entitled to (22
February 2021). More...
CBA guilty of deceptive conduct
The Federal Court has found Commonwealth Bank of Australia
made false or misleading statements and engaged in deceptive
conduct on over 12,000 occasions. Justice Lee found that CBA
breached financial services law 12,119 times when charging a rate
of interest on business overdraft accounts substantially higher
than what customers were advised (17 February 2021). More...
Investors slam Frydenberg's watering down of company
laws
Mr Frydenberg said the bill makes clear that companies and
their officers are not liable for misleading and deceptive conduct
in circumstances where the continuous disclosure obligations have
been contravened unless the requisite 'fault' element is
also proven (17 February 2021). More...
Penalty for Kimberly-Clark for false claims flushable
wipes were made in Australia
The Federal Court has ordered Kimberly-Clark Australia Pty
Ltd to pay a penalty of $200,000 for misleading consumers by
falsely representing on its website that its Kleenex Cottonelle
'flushable cleansing cloths' were made in Australia, and
dismissed the major finding the company had not made false and
misleading claims about the flushabilty of the wipes (16 February
2021). More...
Cases
State Street Global Advisors Trust
Company v Maurice Blackburn Pty Ltd (No
2) [2021] FCA 137
CONSUMER LAW - misleading or deceptive conduct under ss 18 and
29(1)(a), (g) and (h) of the Australian Consumer Law - whether
conduct was "in trade or commerce" - characterisation of
conduct - potentially affected class - discussion of "not
insignificant number" criterion concerning the relevant class
- relevance of that criterion to "passing off" scenarios
invoking such statutory provisions - conflicting Full Federal Court
authority - effectiveness of disclaimer
COPYRIGHT - artistic work - two-dimensional reproduction of
three-dimensional statue - copyright infringement under s 36 of the
Copyright Act 1968 (Cth) - whether copyright licence granted for
the purposes of s 121 - defence of innocent infringement
TORTS - inducing breach of contract - master agreement for display
and promotion of the Fearless Girl statue - art agreement for
purchase and use of a limited-edition reproduction of the Fearless
Girl statue - limitations on artist's rights under the master
agreement - breach of master agreement by the artist - interference
with contractual relations - knowledge of terms of master agreement
- defence of honest and reasonable belief - tort of passing off -
relevant reputation
TRADE MARKS - trade mark infringement under s 120(1) of the Trade
Marks Act 1995 (Cth) - whether the name "Fearless Girl"
was used as a trade mark - whether use was in relation to services
of the same description as those covered by the Fearless Girl trade
mark or closely related goods within the meaning of s 120(2) -
whether use was likely to deceive or cause confusion - defence of
good faith use under s 122(1)(b)(i)
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer
Law) ss 18, 29(1)(a), (g) and (h)
Copyright Act 1968 (Cth) ss 10, 13, 14, 21, 31, 32, 36, 115, 119,
120, 121, 126
Trade Marks Act 1995 (Cth) ss 17, 120(1) and (2), 122(1)(b)(i)
Australian Competition & Consumer
Commission v Kimberly-Clark Australia Pty Ltd (No
2) [2021] FCA 102
TRADE AND COMMERCE - false or misleading representations - where
wrongdoing is admitted - pecuniary penalty - penalty agreed by
parties - principles of assessment
Australian Consumer Law s 29; Competition and Consumer Act 2010
(Cth)
The respondent pay the Commonwealth of Australia a pecuniary
penalty of $200,000 in total in respect of the contraventions of
section 29(1)(k) of the Australian Consumer Law
Fonterra Brands (Australia) Pty Ltd v
Bega Cheese Ltd [2021] VSC
75
CONTRACT - construction - exclusive licence granted to plaintiffs
to use defendant's registered trade marks on prescribed cheese
and butter products - whether defendant prohibited from using the
trade marks on any products - whether prohibition on
defendant's use of trade marks limited to products as defined
in agreements - prohibition on defendant's use of trade marks
limited to products as defined.
RECTIFICATION - unilateral and common mistake - claim for
rectification of agreements to insert the words 'on or in
relation to any product or otherwise whatsoever' - whether at
the time of executing agreements plaintiffs misapprehended that the
defendant would be prohibited from using the trade marks on or in
connection with any product whatsoever - plaintiffs failed to
establish misapprehension by clear and convincing proof - claim for
rectification dismissed.
RESTRAINT OF TRADE - whether restraint of trade doctrine applicable
to clause 3.2 of agreements if defendants prohibited from using
trade marks on or in connection with any products - whether
restraint ancillary to licence to use trade marks -restraint of
trade doctrine applicable - whether clause 3.2 of agreements
invalid as an unreasonable restraint of trade if defendant
prohibited from using trade marks on any products - clause 3.2 not
invalid as an unreasonable restraint of trade.
CONTRACT - construction - whether plaintiffs subject to contractual
obligation to engage in above the line advertising and new product
development - whether plaintiffs required to effectively promote
and develop sales of Bega branded products - whether plaintiffs
required to promote and develop sales of Bega branded products in
foodservices sector - whether plaintiffs required to position Bega
cheese as a premium brand.
CONTRACT - implied term - whether agreements contain an implied
term that plaintiffs would not give undue preference to the
promotion and development of their own brands compared to the
promotion and development of Bega branded products - term not
necessary to give business efficacy to agreements - term not
capable of clear expression - term not reasonable or
equitable.
CONTRACT - plaintiffs solely responsible for ensuring compliance
with legal and regulatory requirements relating to labelling,
packaging and advertising of Bega branded products - whether
plaintiffs misrepresented origin of Bega branded products to
consumers - whether plaintiffs contravened ss 18 and 29(1)(k) of
Australian Consumer Law - whether impugned conduct conveyed pleaded
representation.
CONTRACT - whether common law rights of termination excluded by
express contractual rights of termination.
CONTRACT - whether notices of termination invalid because of
failure to specify remedy - whether notices invalid because of
failure to identify breaches with sufficient specificity.
ELECTION - whether defendant precluded from relying on notices of
termination as a result of the service of subsequent notices after
rights of termination under earlier notices had crystallised.
REMEDIES - whether appropriate to grant declaration that defendant
entitled to terminate agreements.
Evidence Act 2008 (Vic) s 140, Civil Procedure Act 2010 s 7,
Australian Consumer Law (Cth) ss 18, 29(1)(k), Trade Marks Act 1955
(Cth) s 19(3), Competition and Consumer Act (Cth) pt VIIA, Trade
Mark Regulations 1955 (Cth) reg 3.1.
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.