2011 has seen the most significant change to trade practices law in Australia, through the introduction of the second part of the Australian Consumer Law. The changes have been extensive, and in some cases trouble us all by the introduction of new terminology and section numbers – the “Competition and Consumer Act” rather than the “Trade Practices Act”, section 18 of the ACL rather than section 52 of the TPA, and so on.
Despite the extent of change in some areas (such as the new consumer guarantees, unfair contracts regime and unsolicited consumer agreement provisions), a decision handed down by the Federal Court last week included commentary (unsurprisingly) that the prohibition on misleading and deceptive conduct in section 18 of the Australian Consumer Law has the same effect as the old section 52 of the Trade Practices Act.
This case made the papers over the last couple of weeks. Woolworths recently ran a new television campaign featuring products promoted by well-known Australian chef Margaret Fulton. The products are branded as “Margaret Fulton’s Honest to Goodness Family Meals”.
Organic Marketing Australia is the registered owner of a trademark that involves the use of the phrase “Honest to Goodness”. Interestingly, these products are also sold by Woolworths. Organic Marketing sought interlocutory relief restraining Woolworths from using the words “honest to goodness” in its campaign. Part of Organic Marketing’s claim involved a claim for misleading and deceptive conduct. While this is only a decision regarding interlocutory relief, Justice Katzmann did comment in passing that:
“Section 18 [of the Australian Consumer law] prohibits misleading or deceptive conduct in trade or commerce and replaces the former s 52 of the Trade Practices Act. Save that its scope extends now to both corporations and natural persons, it is no different from s 52.”
Justice Katzmann found that there is a serious question to be tried on the question of trademark infringement, but found that the balance of convenience did not favour the granting of interlocutory relief. The Court accepted Woolworths’ submission that damages are an adequate remedy, and that Woolworths could meet any damages awarded.
The case will now proceed to a final hearing. Both parties indicated they were ready to take an early trial date and that they could be ready for a final hearing within a month.