Retail Thera-IP – Legal advertising and marketing updates from Australia

2019 A.D. – The post-influencer age?

17 July 2019 20 July 2019 / Advertising

Social media influencers have become a key weapon in the armoury of advertisers and can be successfully used to drive consumer engagement with a product offering. However, are we entering a ‘post-influencer age’? Only recently, the Australian Federal Government announced that they would no longer use influencer marketing for any government department campaigns after it came to light that influencers working with the government had previously endorsed alcohol and “extreme dieting” products. Similarly, with a number …

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National flags and symbols = public property?

9 July 2019 20 July 2019 / Uncategorised

In honour of NAIDOC Week 2019 (7 – 14 July), this post considers recent coverage of IP rights surrounding the Aboriginal flag. National flags and symbols are useful marketing tools that are often used by businesses to tap into the national consciousness or demonstrate certain values or attributes of a product offering. However, recent media coverage surrounding the ownership and use of the Aboriginal flag has highlighted limitations that exist when such flags and other …

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Prize Promotions Around the World: Launch of new edition

14 June 2019 20 July 2019 / Uncategorised

The fourth edition of DLA Piper’s popular Prize Promotions Around the World online guide is now available. The guide has been fully updated and also includes four new jurisdictions, to bring the total coverage to 39 jurisdictions. Prize promotions (including promotional sweepstakes and skill competitions) remain a hugely popular marketing tool used globally by organisations to engage with customers. The internet and social media platforms make this an attractive, cost efficient means of reaching a …

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Back to school: Consumer rights training required

9 April 2019 20 July 2019 / ACCC updates, Consumer law, Retail

The fast-paced retail environment poses a high risk for businesses to make false, misleading or deceptive representations about products and consumer rights under the Australian Consumer Law (ACL). With the Australian Competition and Consumer Commission (ACCC) having the power to impose considerable pecuniary penalties, businesses should be aware of their obligations under the ACL and ensure that staff are given adequate training. Consumer Guarantees The ACL provides that certain guarantees attach to goods and services …

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Trade prize promotions: You’ve got to be in it to win it!

19 March 2019 20 July 2019 / Uncategorised

You’ve seen them before in magazines, newspapers and when you walk into stores, “Tell us in 25 words or less why you love our product” and “leave your details for your chance to go into a draw to win a holiday!” Trade prize promotions are competitions or lotteries run by businesses to help increase sales and develop their customer base. While these types of promotions are permissible in Australia, the States and Territories have different …

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Online marketing and trade marks: To infringe, or not to infringe?

12 March 2019 20 July 2019 / Advertising, Branding, Trade marks

…Whether ’tis nobler in the mind to suffer The slings and arrows of poor searchability, Or to take arms against a sea of competitors (with SEO and Adwords) As online visibility becomes essential for connecting with consumers, businesses are increasingly investing in measures to improve traffic on their websites. Some of these include acquiring strategic domain names, using search engine optimisation services, and paid search engine advertising. However, in employing these measures, it is important …

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ACCC update: 2019 compliance and enforcement priorities announced

7 March 2019 20 July 2019 / ACCC updates, Consumer law

Last week, the Australian Consumer and Competition Commission (ACCC) announced its annual compliance and enforcement priorities for 2019. The list included a number of priorities that are particularly relevant and important for retail and consumer-facing businesses, including: consumer guarantees, particularly in relation to high value white goods and electrical goods; customer loyalty schemes; advertising practices on social media platforms; collection and use of consumer data; and franchising arrangements. This announcement comes as a timely reminder …

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Don’t believe the hype: Online ratings and reviews under the microscope

26 February 2019 20 July 2019 / ACCC updates, Advertising, Consumer law

Online ratings and reviews are perceived as a low cost, transparent and real-time way for consumers to make informed purchasing decisions and can therefore be highly influential. Over the past year, there have been a number of enforcement actions successfully brought by the ACCC for businesses manipulating reviews or ratings that appear on their website, or third party review platforms. There has been much media focus on online ratings and reviews both in Australia and …

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When a Fyre starts to burn: A cautionary tale in marketing

20 February 2019 20 July 2019 / Advertising, Consumer law

A private island in the Bahamas, an ‘immersive’ music festival experience, return flights on a private jet, luxury eco-friendly villas, world-class gourmet food and partying with supermodels… These were just a few of the representations that organisers made to entice approximately 5,000 ticket holders to attend the Fyre Festival in 2017. This high profile (and extreme!) example of a product or service not matching the marketing hype is a perfect case study for a hypothetical …

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It’s in the warranty: New mandatory wordings introduced

11 February 2019 20 July 2019 / Consumer law

From 8 June 2019, businesses supplying services or the supply of goods and services together to consumers must include new mandatory text in any warranty issued to consumers against defects in their products. The amendments to the Competition and Consumer Regulations 2010 (Cth) now equip consumers with the same level of protection from warranties against defects for services as they currently do from warranties against defects for the supply of goods. As of June 2019, the …

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Customer data: What you should know

5 February 2019 20 July 2019 / Data, Privacy, Retail

As online channels become an increasingly important part of retail businesses, organisations are increasingly collecting customer data in the course of trade. This information is rich with insights that can be used by organisations to track consumption patterns, effectively target their advertising to particular consumers or particular groups of consumers and directly contact consumers. With significant penalties for non-compliance, it is important for businesses to be aware of legal obligations that apply to dealing with this …

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Product labeling update: Country of origin claims

30 January 2019 20 July 2019 / Uncategorised

In late 2018, the Federal Court found that imported fish oil and Vitamin D encapsulated in Australia could not be permissibly labelled as ‘Made in Australia’. These proceedings come as a timely reminder for businesses to ensure that any representations made about a product’s country of origin are clear, accurate, can be substantiated and meet mandatory labelling requirements. General – Products other than Food Under the Commerce (Trade Descriptions) Act 1905 (Cth), all products offered …

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Returning faulty gifts: New year, new product returns?

24 January 2019 20 July 2019 / ACCC updates, Advertising, Consumer law, Retail

There’s always that one present under the tree. It doesn’t quite fit right or maybe doesn’t work once plugged in…Remember to not only remain calm, but both consumers and retailers should also ensure that they are fully aware of their rights and obligations under the Australian Consumer Law (ACL). According to the ACCC website, the Australian competition watchdog received nearly 34,000 contacts about consumer guarantee related issues in 2018 alone – an increase of more …

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Digital marketing update: Shoppable content, unreal and nano influencers, virtual home assistants and ads in messaging apps

18 January 2019 20 July 2019 / Advertising, Branding, Consumer law

In a world of exponential technological growth, consumers make purchasing decisions across an array of media platforms. When developing new methods of delivering a personalised and convenient consumer experience across these platforms, businesses should therefore factor in the risks involved including the application of the Australian Consumer Law (ACL). In this update, we take a look at some of the predicted tech trends for 2019 and flag the associated legal issues you should bear in mind. …

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Marketing warfare series – Part III: Guerrilla marketing

8 January 2019 20 July 2019 / Advertising, Consumer law, Trade marks

What is guerrilla marketing? Guerrilla marketing involves unconventional or interactive campaigns that take consumers by surprise and typically attract social media attention for being so unexpected. These tactics allow businesses to repurpose their consumers’ environment to include their brand and are particularly attractive to small businesses looking for greater reach and impact at a lower cost than traditional marketing. This type of marketing can take many forms, including: publicity stunts (e.g. flash mobs or world record …

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