In the media
CK Surgitech issued $25,200 in infringement notices for
alleged breaches in relation to COVID-19 test kits
The TGA has issued infringement notices to Queensland
company CK Surgitech for alleged breaches relating to COVID-19 test
kits. It is alleged the company made a false or misleading
statement in an application to have their IVD Rapid Test kits for
SARS-CoV2 (the COVID-19 virus) included in the Australian Register
of Therapeutic Goods (ARTG) (24 April 2020).
More...
Retailers granted authorisation to collectively
negotiate with landlords
The ACCC has granted interim authorisation allowing
retailers to collectively bargain with landlords about rent relief
during the COVID-19 pandemic. The authorisation is voluntary and
temporary, and does not include individual tenants exchanging
information about the amount of their rent or any rent incentives
they were previously granted (22 April 2020).
More...
Petrol retailers should reduce their prices in line with
falls in international petrol prices
Petrol retailers should not use the current pandemic to
further increase profits, which the latest ACCC petrol industry
report shows have risen in recent years, and should pass on the
full benefit of falling oil prices to motorists, the ACCC has said
(22 April 2020).
More...
Google and Facebook to pay for content
The Government IT has ordered the ACCC to stop working on
the voluntary code and prepare a new mandatory code of conduct
regime to address bargaining power imbalance between the big
platforms and the media. Treasurer Josh Frydenberg said ahead of
the announcement that it's 'only fair that those that
generate content get paid for it' (20 April 2020).
More...
Billion-dollar busts: Which big businesses will be burnt
by COVID-19?
There are the organisations which almost certainly would
have collapsed anyway. ASIC announced that it had commenced
proceedings against Mayfair for the publication of false,
misleading and deceptive conduct. And, to make matters worse,
Mayfair has frozen redemptions for its IPO Wealth Fund (21 April
2020).
More...
Bega wins legal battle against American food giants
Kraft and Heinz over packaging rights
Bega Cheese has won a long running legal battle against
American giants Kraft and Heinz over its use of peanut butter
product packaging. Kraft had alleged Bega engaged in misleading or
deceptive conduct over the marketing of its peanut butter products,
and the federal court ruled last year that Bega has exclusive
rights to the use of iconic yellow lids, and red and blue labels
(14 April 2020).
More...
Co-ordination on life insurance for frontline workers
during pandemic
The ACCC has granted interim authorisation allowing life
insurers to co-ordinate to ensure frontline healthcare workers are
not excluded from coverage due to potential or actual exposure to
COVID-19. The authorisation does not include co-ordination on
pricing, meaning customers should still shop around (14 April
2020).
More...
Practice and Regulation
Draft notice: ACCC proposal to revoke Stanley Black
& Decker's resale price maintenance
Stanley Black & Decker and interested parties can
comment on the draft notice before the ACCC makes a final decision.
Submissions are due by 24 April 2020. Further information,
including the resale price maintenance notification and details
about how to make a submission are available on the ACCC's
public register at
Stanley Black & Decker.
ACMA: Implementation of the Spectrum Pricing Review -
consultation 07/2020
This paper outlines our proposed guidelines and focus
areas as we implement the Spectrum Pricing Review.
Status Open, submissions close on 19 April 2020. Consultation
number IFC 7/2020
Note: The original closing date of Wednesday 15 April 2020 has been
extended to allow industry sectors to prioritise their
business-critical functions during the COVID-19 pandemic, until 30
June 2020.
More...
ACCC consultation update: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26
GHz spectrum licences, the potential uses for the spectrum, the
markets where this spectrum will be used, and any competition
issues associated with how this spectrum is allocated. The Minister
has asked for the ACCC's advice by mid-May 2020. The
consultation paper is available
here.
Cases
Kraft Foods Group Brands LLC v Bega Cheese
Limited [2020] FCAFC
65
CONTRACTS – construction of agreements relating to
the restructure of the Kraft Foods Inc group in October 2012
– where two independent public companies were created: a
global snacks business (SnackCo) and a North American grocery
business (GroceryCo) – where certain intellectual property
rights were allocated to the intellectual property company of the
SnackCo group (SnackCo IPCo) and certain such rights were allocated
to the intellectual property company of the GroceryCo group
(GroceryCo IPCo) – whether rights in relation to certain
get-up used by an Australian company for peanut butter products
manufactured and sold in Australia (the Peanut Butter Trade Dress)
were allocated to SnackCo IPCo or GroceryCo IPCo –
construction of various definitions used in the agreements –
consideration of commercial purpose or object of the
agreements
CONSUMER LAW – misleading or deceptive conduct –
whether either party engaged in misleading or deceptive conduct in
contravention of the Australian Consumer Law (or passing off) by
applying the Peanut Butter Trade Dress to peanut butter products
– whether the respondent engaged in misleading or deceptive
conduct in relation to its television and radio advertisements
– whether the appellants engaged in misleading or deceptive
conduct in a press release and by use of the slogan "Loved
since 1935"
TRADE MARKS – infringement – where primary judge found
that the respondent had infringed the appellants' trade marks
by supplying certain peanut butter products in 'shippers'
bearing the Kraft hexagon logo – whether the respondent used
the Kraft hexagon logo trade mark (or the "Kraft" trade
mark) "as a trade mark" within the meaning of s 120(1) of
the Trade Marks Act 1995 (Cth)
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer
Law, ss 18, 29
Australian Securities and Investments Commission v Mayfair
Wealth Partners Pty Ltd [2020] FCA
494
CONSUMER LAW – misleading and deceptive conduct
– false or misleading representations – where regulator
alleges statutory contraventions in relation to promotion of
financial products by defendants – where regulator applies
for interlocutory injunction restraining defendants from promoting,
receiving investment in, or issuing, financial products –
where defendants offer to make undertaking to Court to cease
engaging in certain forms of promotion pending trial –whether
serious question to be tried – whether balance of convenience
favours grant of injunction – whether interlocutory
injunction should be granted
Held: interlocutory injunction granted, but in terms different to
those proposed by regulator – terms of injunction proposed by
regulator would disproportionately impede defendants' business
pending trial – injunction granted in a form directed to
protecting consumers, not shutting down substantial part of
defendants' business
Barrett v Maradaca Pty Ltd [2020]
NSWSC 440
(1) On a finding of contravention of section 18 of the
Australian Consumer Law, the cross defendants held liable to the
second cross claimant for damages in the sum of $1.35 million, with
an award of pre-judgment interest to be made.
CONTRACTS – Misleading conduct under statute –
Misleading or deceptive conduct – Silence – Remedies
– Measure of damages – Australian Consumer Law,
sections 18 and 236(1).
Australian Consumer Law; Civil Procedure Act 2005 NSW; Competition
and Consumer Act 2010 Cth
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.
