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Inside track: Competition & Consumer Law

14 May 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

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).  More...

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).  More...

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).  More...

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...


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.


Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752

Ian Robertson, National Managing Partner
T: +61 2 8083 0401

Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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