The ACCC and other government regulators are increasingly interested in the role that the creative industries, especially marketing companies and advertising companies, play in the creation of advertising which might be misleading and deceptive.
Our role in working with graphic design companies, brand consultants, marketing companies, and advertising companies is to mitigate the risk that:
- these organisations do not sell to their clients proprietary intellectual property, notably brands, which are already owned by third parties. We assist creatives by conducting common law searches to determine whether there are any brands, registered as trade marks or unregistered, which might lead to a third party asserting rights against our clients and their clients. We have been responsible for contributing to the successful launches of hundreds of new brands;
- they do not fall foul of the misleading and deceptive conduct provisions of the Competition and Consumer Act. Liability for misleading and deceptive conduct can go beyond the corporate veil and apply to directors and managers who were involved in the misleading and deceptive conduct. We have significant expertise in helping companies set up compliance programs to avoid the risk of being pursued by the ACCC and other regulators;
- any comparative advertising is fair and reasonable. There has been judicial consideration of the comparative advertising provisions of the Trade Marks Act which has resulted in a strict application of the law. We have advised clients on the proper use of comparative advertising, especially in contentious areas such as use on the internet, where comparative advertising attracts search engines and has the risk of passing off the goodwill in a third party's trade mark.