Retail Thera-IP

AUSTRALIAN BURGER CHAIN BITES OFF MORE THAN IT CAN CHEW: LEARNINGS FOR FOREIGN BRAND OWNERS FROM IN-N-OUT BURGERS, INC V HASHTAG BURGERS PTY LTD & ORS [2020] FCA 193

10 March 2020 10 March 2020 / Branding, Consumer law, Food and beverage, Retail, Trade marks

The Federal Court of Australia (FCA) recently handed down its decision in the case that all Australian burger lovers have been eagerly watching – infringement proceedings brought by US burger chain, In-N-Out Inc. (INO), against Sydney based burger chain, Hashtag Burger Pty Ltd, trading as D#wn-N-Out (DNO). Having regard to overwhelming evidence, the court found for INO on all grounds – namely, that DNO had infringed the “IN-N-OUT BURGERS” trade mark, engaged in misleading and deceptive conduct under the Australian Consumer Law (ACL) and satisfied the tort of passing off. Unfortunately for DNO, the FCA’s decision is likely to mean …

AUSTRALIAN BURGER CHAIN BITES OFF MORE THAN IT CAN CHEW: LEARNINGS FOR FOREIGN BRAND OWNERS FROM IN-N-OUT BURGERS, INC V HASHTAG BURGERS PTY LTD & ORS [2020] FCA 193 Read More »

FOOD FOR THOUGHT: 2020 ACCC COMPLIANCE AND ENFORCEMENT PRIORITIES ANNOUNCED

26 February 2020 26 February 2020 / ACCC updates, Advertising, Consumer law, Food and beverage, Retail

Earlier this week, the Australian Competition and Consumer Commission (ACCC) announced its annual compliance and enforcement priorities for 2020. This list consists of a number of areas that are targeted at retail and particularly food businesses in Australia and include: misleading and deceptive conduct in relation to the sale and promotion of food products; franchisor conduct and compliance with the Franchising Code of Conduct; education and enforcement concerning consumer guarantees; and competition and consumer issues relating to digital platforms, especially the collection and use of consumer data. This announcement comes as a timely reminder for businesses to ensure they have …

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The Elephant in the Womb: FSANZ Calls for Submissions on Proposed Mandatory Pregnancy Warning Labels on Alcoholic Beverages

15 October 2019 15 October 2019 / Advertising, Branding, Food and beverage

Food Standards Australia New Zealand (FSANZ) has recently called for submissions on proposed mandatory warning labels to inform consumers of the dangers of drinking alcohol while pregnant. Despite the Australian and New Zealand governments regularly issuing health warnings against consuming alcohol while pregnant, recent studies conducted by FSANZ have found that consumers do not recognise that drinking “small amounts” of alcohol is also dangerous to foetuses, and considerably increases the risk of Foetal Alcohol Spectrum Disorder. The Proposal In response to these recent studies, FSANZ is proposing to introduce a mandatory pregnancy warning labelling requirement for all packaged alcoholic beverages …

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Not Bhed, Good Trade Mark: Infringement, Ten Seconds In?

8 October 2019 8 October 2019 / Advertising, Branding, Trade marks

It was recently reported that the man behind the “not bhed, good syze” fishing video is taking steps to trade mark the catchphrase that made him a viral sensation in Australia. With the video’s star now capitalising on his new found fame, including starring in an advertisement for a space rental start-up, this has left many wondering whether they will have to refrain from uttering their favourite phrase, or otherwise run the risk of infringing his trade mark… In short, not necessarily. Setting aside whether or not the phrase is sufficiently distinctive to qualify for registered trade mark protection, the …

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Therapeutic Goods Administration Cracks Down on Prohibited Advertising

3 October 2019 22 October 2019 / Advertising

A series of recent enforcement actions and announcements by the Therapeutic Goods Administration (TGA) indicate that the regulator is actively monitoring and prosecuting businesses for breaches of the Therapeutic Goods Advertising Code (No. 2) 2018 (TG Advertising Code) and Therapeutic Goods Act 1989 (TG Act). These enforcement actions include: successfully prosecuting a business in the Federal Court of Australia, resulting in a financial penalty of AUD 10 million, for advertising peptide products: in breach of restrictions on advertising substances listed in Schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons (Poisons Standard), including peptide products; making …

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These Schemes Ain’t Loyal says ACCC Draft Report on Customer Loyalty Schemes

17 September 2019 17 September 2019 / ACCC updates, Advertising, Consumer law, Retail

The Australian Competition & Consumer Commission (ACCC) recently released its draft report on customer loyalty schemes, which has raised concerns about the actual benefit to consumers of such schemes and the use (or rather misuse) of consumers’ data. Preliminary Findings and Concerns At a high level, the ACCC’s main concerns (as set out in the report) focus on the following key areas: whether consumers actually receive the benefits advertised by customer loyalty schemes; unilateral changes to loyalty scheme terms and conditions – such as reduction of ‘earn rates’ and ‘redemption values’; poor communication of how the respective schemes work – …

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Subscribed, Sealed, Delivered – Embracing the Subscription Box Retail Model

6 September 2019 5 September 2019 / Consumer law, Retail

The Australian retail sector is experiencing significant structural change – and this leaves businesses with no choice other than to start thinking outside the box…or rather think about the box itself… Enter the subscription box. By paying a regular fee, subscribers can receive a recurring delivery of products, often picked for the customer by the supplier. This model has gained traction in the US with several large clothing and accessory brands rolling out subscription services which looks set to transform the way customers access their favourite brands and products. However, as with any model that involves engaging with consumers in …

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No More Sugar Coating: Government Orders Review of Nutrition Labelling for Added Sugars

30 August 2019 30 August 2019 / Branding, Food and beverage, Retail

They say you are what you eat…. But it’s doubtful that most Australians would be comfortable saying that they are the 10 (or more) teaspoons of sugar they consumed in their last can of soft drink. However, we may well soon be confronted with these images given that labelling that displays this information pictorially is set to be considered by Food Standards Australia New Zealand (FSANZ) as part of a recently announced review of nutritional labelling for added sugars (the AS Review). This comes as a timely reminder for businesses that manufacture, package and supply food and beverages to ensure …

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It Aint Easy Being Cheesy – Geographical Indications on the Table in EU Free Trade Negotiations

21 August 2019 14 October 2019 / Branding, Food and beverage, Trade marks

All cheeses that are close to our hearts (and taste buds) and have been announced as geographical indications that the EU is seeking to protect under the terms of a new free trade agreement with Australia (EUFTA).

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 of high profile influencers recently mis-stepping (see our previous post on the Fyre Festival here) and the speed of information spreading on the internet, businesses …

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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 Australian cultural symbols are used for commercial purposes. This comes as a timely reminder that businesses should be mindful of IP rights and cultural sensitivities …

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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 large, multi-jurisdictional customer base; but it is not without its legal challenges. This guide is designed to equip DLA Piper’s clients with a useful tool …

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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 sold, leased or hired in Australia that have a retail value of less than $40,000, or are valued at over $40,000 but have been purchased …

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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 laws which dictate the extent of permissions required, if any, to run them. Additionally, federal laws impose some restrictions on a business’ conduct in advertising …

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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 for businesses to ensure that they do not infringe the trade marks of their competitors. Terminology To unpack the jargon: a domain name is an …

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