Marketing

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Chapter 10: Advertising
Australian Consumer Law (trades practices 1974)
- S18: the right conduct= prohibits misleading and deceptive conduct - remedies: injunctions, damages and corrective advertising

ELEMENTS of S18
1. who is a ‘person’
2. must be in trade or commerce ( an employee, private seller, misleading advertisement) 3. misleading and deceptive? (lead into error, usually involves misrepresentation) 4. Threshold
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* TEST
1. identify audience
* - who is it intended for?
* - those people that it is likely to influence (Hansen beverage company v bickfords 2008) * - the ‘relevant’ section of public
* - will be judged on a number of things such as the product involved, price, type of person who regularly buys *
2. What impression is being conveyed to the relevant target audience? * whether the conduct should be judged against any member of the relevant audience or whether some people should be excluded * the impression is what any reasonable member of the relevant section or ordinary person thinks * cases; pexu,lego, taco bill

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3. impression true or false?
* once it has determined what the relevant conduct means to the relevant audience it is a matter of assessing whther the message or impression conveyed to the relevant section if people is true or false * if false= breach of s18

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* examples:
* - Opinions and exaggerations
* - If there is a basis for it
* - It is honestly held
* - Expressed as an opinion of an expert
* - Opinion supported by facts
* - But puffery excluded
* - Predictions
* - Silence
* - Scientific claims
* - Comparative advertising
* - Country of origin claims
* - Using celebrities to promote products
* - Sponsorship and ambush marketing
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* ** talk about other Sections:
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* S29: False + misleading representation (S151 criminal provision) * 29(1)(a)/(b) – standard, quality, value, grade, composition etc * 29(1)(c) – newness of goods
* 29(1)(d) – agreement to acquire goods or services
* 29(1)(e)(f) – testimonials
* 29(1)(g)(h) – sponsorship, approval, performance characteristics, accessories, uses or benefits * 29(1)(i) – price of goods or services
* 29(1)(j) – facilities for repair, spare parts
* 29(1)(k) – place of origin of goods
* 29(1)(k) – place of origin of goods
* 29(1)(l) – need for goods or services
* 29(1)(m) – contract rights of consumers
* 29(1)(n) – requirement to pay for contractual right
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* S33: Misleading Conduct: goods (S155)
* S34 Misleading Conduct: services (S156)
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* DEFENSES S226

- Defence for publishers: criminal proceedings only!
Persons involved with publishing advertisments: s209 of ACL

- reasonable mistake of fact: s207 (1) criminal proceedings only! Reasonable mistake= error made without negligence or carelessness This mistake is usually made when a person relies on another persons information (ADAMS v ETA FOODS pty ltd 1987)

-Reasonable precautions and exercising due diligence: criminal only S208:
1. must be due to the act of another person or and acedent or some other cause beyond the defendants control AND 2. the defendant must have taken reasonable precautions and exercised due diligence to avoid contravention = * Setting up a system for detecting possible breaches of ACL * Putting in place reasonable procedures for avoiding those breaches and * Monitoring the procedures

Adams v Eta foods pty ltd 2008= found that this is only available if the precautions are directed to avoiding the actual contravention that occurred

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* Chapter 2: Protecting Inventive Ideas
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* PATENTS
* purpose is to protect inventive ideas by giving the inventor exclusive rights over the invention for a period of time * inventors are given and economic incentive to use their creative...
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