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Inside track: Competition & Consumer

28 April 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

CK Surgitech issued $25,200 in infringement notices for alleged breaches in relation to COVID-19 test kits
The TGA has issued infringement notices to Queensland company CK Surgitech for alleged breaches relating to COVID-19 test kits. It is alleged the company made a false or misleading statement in an application to have their IVD Rapid Test kits for SARS-CoV2 (the COVID-19 virus) included in the Australian Register of Therapeutic Goods (ARTG) (24 April 2020).  More...

Retailers granted authorisation to collectively negotiate with landlords
The ACCC has granted interim authorisation allowing retailers to collectively bargain with landlords about rent relief during the COVID-19 pandemic. The authorisation is voluntary and temporary, and does not include individual tenants exchanging information about the amount of their rent or any rent incentives they were previously granted  (22 April 2020).  More...

Petrol retailers should reduce their prices in line with falls in international petrol prices
Petrol retailers should not use the current pandemic to further increase profits, which the latest ACCC petrol industry report shows have risen in recent years, and should pass on the full benefit of falling oil prices to motorists, the ACCC has said (22 April 2020).  More...

Google and Facebook to pay for content
The Government IT has ordered the ACCC to stop working on the voluntary code and prepare a new mandatory code of conduct regime to address bargaining power imbalance between the big platforms and the media. Treasurer Josh Frydenberg said ahead of the announcement that it’s ‘only fair that those that generate content get paid for it’ (20 April 2020).  More...

Billion-dollar busts: Which big businesses will be burnt by COVID-19?
There are the organisations which almost certainly would have collapsed anyway. ASIC announced that it had commenced proceedings against Mayfair for the publication of false, misleading and deceptive conduct. And, to make matters worse, Mayfair has frozen redemptions for its IPO Wealth Fund (21 April 2020).  More...

Bega wins legal battle against American food giants Kraft and Heinz over packaging rights
Bega Cheese has won a long running legal battle against American giants Kraft and Heinz over its use of peanut butter product packaging. Kraft had alleged Bega engaged in misleading or deceptive conduct over the marketing of its peanut butter products, and the federal court ruled last year that Bega has exclusive rights to the use of iconic yellow lids, and red and blue labels (14 April 2020).  More...

Co-ordination on life insurance for frontline workers during pandemic
The ACCC has granted interim authorisation allowing life insurers to co-ordinate to ensure frontline healthcare workers are not excluded from coverage due to potential or actual exposure to COVID-19. The authorisation does not include co-ordination on pricing, meaning customers should still shop around (14 April 2020).  More...

Practice and Regulation

Draft notice: ACCC proposal to revoke Stanley Black & Decker’s resale price maintenance
Stanley Black & Decker and interested parties can comment on the draft notice before the ACCC makes a final decision. Submissions are due by 24 April 2020. Further information, including the resale price maintenance notification and details about how to make a submission are available on the ACCC’s public register at Stanley Black & Decker.

ACMA: Implementation of the Spectrum Pricing Review - consultation 07/2020
This paper outlines our proposed guidelines and focus areas as we implement the Spectrum Pricing Review.
Status Open, submissions close on 19 April 2020. Consultation number IFC 7/2020
Note: The original closing date of Wednesday 15 April 2020 has been extended to allow industry sectors to prioritise their business-critical functions during the COVID-19 pandemic, until 30 June 2020.  More...

ACCC consultation update: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26 GHz spectrum licences, the potential uses for the spectrum, the markets where this spectrum will be used, and any competition issues associated with how this spectrum is allocated. The Minister has asked for the ACCC’s advice by mid-May 2020. The consultation paper is available here.


Kraft Foods Group Brands LLC v Bega Cheese Limited [2020] FCAFC 65
CONTRACTS – construction of agreements relating to the restructure of the Kraft Foods Inc group in October 2012 – where two independent public companies were created: a global snacks business (SnackCo) and a North American grocery business (GroceryCo) – where certain intellectual property rights were allocated to the intellectual property company of the SnackCo group (SnackCo IPCo) and certain such rights were allocated to the intellectual property company of the GroceryCo group (GroceryCo IPCo) – whether rights in relation to certain get-up used by an Australian company for peanut butter products manufactured and sold in Australia (the Peanut Butter Trade Dress) were allocated to SnackCo IPCo or GroceryCo IPCo – construction of various definitions used in the agreements – consideration of commercial purpose or object of the agreements
CONSUMER LAW – misleading or deceptive conduct – whether either party engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law (or passing off) by applying the Peanut Butter Trade Dress to peanut butter products – whether the respondent engaged in misleading or deceptive conduct in relation to its television and radio advertisements – whether the appellants engaged in misleading or deceptive conduct in a press release and by use of the slogan “Loved since 1935”
TRADE MARKS – infringement – where primary judge found that the respondent had infringed the appellants’ trade marks by supplying certain peanut butter products in ‘shippers’ bearing the Kraft hexagon logo – whether the respondent used the Kraft hexagon logo trade mark (or the “Kraft” trade mark) “as a trade mark” within the meaning of s 120(1) of the Trade Marks Act 1995 (Cth)
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18, 29

Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd [2020] FCA 494
CONSUMER LAW –  misleading  and  deceptive conduct  – false or  misleading  representations – where regulator alleges statutory contraventions in relation to promotion of financial products by defendants – where regulator applies for interlocutory injunction restraining defendants from promoting, receiving investment in, or issuing, financial products – where defendants offer to make undertaking to Court to cease engaging in certain forms of promotion pending trial –whether serious question to be tried – whether balance of convenience favours grant of injunction – whether interlocutory injunction should be granted
Held: interlocutory injunction granted, but in terms different to those proposed by regulator – terms of injunction proposed by regulator would disproportionately impede defendants’ business pending trial – injunction granted in a form directed to protecting consumers, not shutting down substantial part of defendants’ business

Barrett v Maradaca Pty Ltd [2020] NSWSC 440
(1) On a finding of contravention of section 18 of the Australian Consumer Law, the cross defendants held liable to the second cross claimant for damages in the sum of $1.35 million, with an award of pre-judgment interest to be made.
CONTRACTS –  Misleading  conduct under statute –  Misleading  or  deceptive conduct  – Silence – Remedies – Measure of damages – Australian Consumer Law, sections 18 and 236(1).
Australian Consumer Law; Civil Procedure Act 2005 NSW; Competition and Consumer Act 2010 Cth

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