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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 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

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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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 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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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 for sale, displayed or sold in Australia must be labelled with a trade description including its country of origin. Similarly, labels and packaging must not …

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A Christmas credit carol: Advertising consumer credit

As we move into the festive season, personal finance such as credit cards and loans become increasingly attractive to consumers so they can spread the Christmas cheer. Offering finance options are a great way to get customers through the door, however, businesses should be aware of requirements that apply to advertising consumer credit under the National Credit Code (NCC), which is contained in Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth). Applicability The NCC is regulated by Australian Securities and Investments Commission (ASIC) and applies to ‘credit contracts’.  These are agreements that have the following features: the …

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Marketing warfare series – Part I: Ambush marketing

To get an edge over competitors, businesses often resort to aggressive marketing and advertising strategies to promote their products. While these campaigns are usually creative, amusing to consumers and highly effective for attracting publicity, they can have unforeseen consequences, such as agitating a competitor into taking action against the aggressor. In this series (this is the first of three posts), we consider various ‘marketing warfare’ strategies that are commonly used by businesses, the risks of employing these strategies, and what can be done to combat the practices. In this post, we consider ambush marketing. What is ambush marketing? Ambush marketing …

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International product safety week – Product safety risks in e-commerce

We all know how convenient it is to shop online (particularly today with the Black Friday sales!), but we often don’t think about the risks involved.  We can’t touch the product, we can’t see it with our own eyes, and sometimes we are uncertain as to the true identity of the seller.  Yet nine times out of ten, we probably still buy it! Last week (12-16 November) was International Product Safety Week.  Australia’s national competition and consumer law regulator, the Australian Competition and Consumer Commission (ACCC) joined an international campaign lead by the OCED (Organisation for Economic Co-operation and Development) …

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Tax Update: A New Digital Tax in Australia?

Following its announcement in May, the Australian Government has now released a discussion paper, raising a debate on whether Australia should introduce a new interim digital tax (Discussion Paper). The Discussion Paper refers to digital businesses with a significant “digital footprint” in Australia that may not necessary have a physical (or tax) presence in Australia. These include: news and information providers (search engines and targeted digital advertising), social media services, e-retail platforms, digital communication services (messaging services), digital streaming/sharing services, accommodation platforms, ride sharing/booking platforms and other digital platforms. The Discussion Paper recognises that Australian and international tax laws currently …

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Unlimited Data or Unlimited Liability? Misleading and Deceptive Claims by Telcos

In a stern warning by the Australian Competition and Consumer Commission (ACCC), telecommunication providers have been put on notice to ensure that their advertising is “clear and transparent”, or otherwise both companies and management that approve misleading advertisements will face proceedings for breach of the Australian Consumer Law (ACL). A recent action in the Federal Court, and investigations by the ACCC have scrutinised claims that mobile data services are “unlimited” where they are in fact subject to speed caps for particular uses, after a data threshold is reached or during high congestion periods. While some of these advertisements included disclaimers, …

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Food Standards Code: Claims in Food Advertising and Marketing

A number of recent enforcement actions by the ACCC appear to indicate that claims made about food products, particularly ones targeting children, are being closely monitored by regulators. In addition to general obligations under the Australian Consumer Law, businesses should also be aware of regulations that specifically apply to claims made about the nutritional content and health benefits of food under the Food Standards Code (the Code). Nutritional Content Claims A nutritional content claim is any representation made about the nutritional content of food, including dietary fibre, energy, minerals, potassium, protein, carbohydrates, fat, salt, sodium, vitamins or glycaemic index (Nutritional …

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The new General Data Protection Regulation is here!

Last week the new General Data Protection Regulation (GDPR) came into force and for a short period of time was allegedly Google’d more than Beyonce that day! The requirements under the GDPR are important for organisations to consider, particularly where they may collect personal data (including for marketing purposes or in e-commerce). Under the GDPR, any companies outside the European Union who use or collect personal data of individuals in the EU are subject to the requirements of the GDPR. This includes any data set which can directly or indirectly identify or single out an individual. The enhanced compliance obligations …

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