DLA Piper Retail Thera-IP Team

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

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 …

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

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 …

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

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 …

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2019 A.D. – The post-influencer age?

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?

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

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

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!

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?

…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

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

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

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

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

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

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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