Marketing Law Exam Notes:
Marketing Law Exam Notes: For Misleading or Deceptive Conduct Questions •
MDC is defined under s18 as o A person must not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive
Elements to prove: 1. Whether it was a person a. All legal entities b. Includes individuals, corporations, non-corporate entities like associations 2. The transaction was in trade or commerce a. Defined under s2 b. Must be some form of external communication and transaction by a business to further their business 3. Person was engaging in conduct a. Defined under s2(2) – i. Representation, Giving Advice, Passing Off or Silence 4. That conduct was misleading or deceptive OR likely to mislead or deceive a. There is no legislative definition so we turn to case law
Engaging in conduct: •
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Opinion and exaggerations o Collier Construction v Foskett A statement like “best deal” is too subjective to be MDC o Dewhirst & Kay Rent a Car v Budget Rent a Car ▪ Statement that are factually wrong are MDC ▪ Look out for comparisons, numerical and factual statements Predictions/Future Representations o S4 ACL – An incorrect prediction is not MDC o ACCC v Danoz Direct You cannot make a prediction if there was not reasonable grounds for making it Silence o Is defined as conduct under s2(2)(c)(i) o Consider whether the silence conveys a false msg (e.g. when there is a change of situation) o Demagogue v Ramensky – Was it reasonable for the person to disclose the change in circumstance Scientific Claims (Colgate Palmolive v Rexona) – Must have scientific foundation Comparative Advertising (Makita Australia v Black and Decker) – Must not be M or D
What is MDC? •
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Weitman v Katies To lead someone into error o There needs to be a real chance that someone will be mislead o The MDC does not need to actually happen to prove MDC WILL happen Taco Bell Test o Identify relevant section of public ▪ i.e. target audience (Can be just an individual, public at large or specific class of persons) o Conduct in reference to those in that class ▪ For Individuals: Buthcer v Lacklan Elder Realty • Consider the effect it would have on that person ▪ Public: Campomar v Nike • Create hypothetical ordinary person to represent class o i.e. astute inexperienced o Generally, public is unsophisticated and uninformed o They will be expected to take reasonable care and behave reasonably ▪ Specific Classes (e.g. Doctors, Pharmacicsts, etc.): Apotex v Laboratories Servier • Generally, look at what knowledge/experience is necessary to become part of that class and use that as an ordinary person ▪ Remember that more than one group can be targeted o Examine evidence of Deception ▪ Were they actually mislead or did they come to some erroneous conclusion? o Why misconception has arisen ▪ There must be a causal connection between the conduct and the MD ▪ i.e. you cannot rely on; • Erroneous assumptions • TP representations • Own assessment of situation
Remedies and Defenses: • • •
S80 – Injunction S82 – Damages S87 – Any other order considered appropriate by the court
MDC is defined under s18 as o A person must not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive
Elements to prove: 1. Whether it was a person a. All legal entities b. Includes individuals, corporations, non-corporate entities like associations 2. The transaction was in trade or commerce a. Defined under s2 b. Must be some form of external communication and transaction by a business to further their business 3. Person was engaging in conduct a. Defined under s2(2) – i. Representation, Giving Advice, Passing Off or Silence 4. That conduct was misleading or deceptive OR likely to mislead or deceive a. There is no legislative definition so we turn to case law
Engaging in conduct: •
•
•
• •
Opinion and exaggerations o Collier Construction v Foskett A statement like “best deal” is too subjective to be MDC o Dewhirst & Kay Rent a Car v Budget Rent a Car ▪ Statement that are factually wrong are MDC ▪ Look out for comparisons, numerical and factual statements Predictions/Future Representations o S4 ACL – An incorrect prediction is not MDC o ACCC v Danoz Direct You cannot make a prediction if there was not reasonable grounds for making it Silence o Is defined as conduct under s2(2)(c)(i) o Consider whether the silence conveys a false msg (e.g. when there is a change of situation) o Demagogue v Ramensky – Was it reasonable for the person to disclose the change in circumstance Scientific Claims (Colgate Palmolive v Rexona) – Must have scientific foundation Comparative Advertising (Makita Australia v Black and Decker) – Must not be M or D
What is MDC? •
•
Weitman v Katies To lead someone into error o There needs to be a real chance that someone will be mislead o The MDC does not need to actually happen to prove MDC WILL happen Taco Bell Test o Identify relevant section of public ▪ i.e. target audience (Can be just an individual, public at large or specific class of persons) o Conduct in reference to those in that class ▪ For Individuals: Buthcer v Lacklan Elder Realty • Consider the effect it would have on that person ▪ Public: Campomar v Nike • Create hypothetical ordinary person to represent class o i.e. astute inexperienced o Generally, public is unsophisticated and uninformed o They will be expected to take reasonable care and behave reasonably ▪ Specific Classes (e.g. Doctors, Pharmacicsts, etc.): Apotex v Laboratories Servier • Generally, look at what knowledge/experience is necessary to become part of that class and use that as an ordinary person ▪ Remember that more than one group can be targeted o Examine evidence of Deception ▪ Were they actually mislead or did they come to some erroneous conclusion? o Why misconception has arisen ▪ There must be a causal connection between the conduct and the MD ▪ i.e. you cannot rely on; • Erroneous assumptions • TP representations • Own assessment of situation
Remedies and Defenses: • • •
S80 – Injunction S82 – Damages S87 – Any other order considered appropriate by the court
