Assignment Question 1A. As defined in the text, Australian Intellectual Property Law, ‘a typical passing of situation is one which the defendant represents that its product originates from or is in some way associated with the plaintiff or plaintiff’s business when that is not the case.’ Passing off is a tort designed to prevent a trader from damaging another trader’s reputation or goodwill as a result of the defendant’s conduct. It may do this by the adoption or imitation of some business indicia of the plaintiff including; brand name or business name, signs that could easily be associated with the plaintiff’s product, and many other indicia under which a product is being sold. In determining whether the defendant’s (ALDI’s) packaging …show more content…
In particular, if consumers are accustomed to rely upon a particular brand name, it matters not that there is little or no public awareness of the identity of the defendant’s product. Danish Dairy Board must demonstrate that ALDI has made some sort of misrepresentation in the course of commerce or trade to potential consumer, relying on the LURPAK’s reputation and goodwill. As a general matter, under the tort of passing off, Danish Dairy Board could argue a misrepresentation as to the source of claim (Reckitt & Coleman), and misrepresentation as to the quality (ADVOCAAT). For example, In Re Taco Company of Australia [1982] FCA 136 a large United State restaurant chain opened two Taco Bell restaurants in Sydney suburbs even though they knew that there was an existing Australian Taco Bell in Bondi.’ It was held that the UNITED STATE’s Taco Bell conduct amounted to a misrepresentation in the mind of the potential consumers that the new Taco Bell was somehow connected to …show more content…
However, when the question of deceptively similar was raised, the court held it to be deceptively similar. As such ‘an infringement had occurred.’ The idea of being deceptively similar however presents Danish Dairy Board with a strong force to dispute for his rights. The plaintiff may argue that while it has well established its reputation as the most delicious premium butter in the world’ and it has became the trademark for quality Danish butter, it has now been faced with a similar product along with similar name and features operating in the same market. This would raise the question as to whether consumers would somewhat link the two product to have some sort of connection. As such, it is more likely that the court apply the principle of Polariod Corporation v Sole N Pty Ltd on this case, as the facts of the case are so
Rationale This Further Oral Activity will be presented on a T.V. show format (based on the show “The Gruen Transfer”), with the host focusing on the false advertising of well-known health foods and drinks. This FOA will focus on the persuasive language and manipulative strategies used by businesses to influence and mislead consumers into believing false perceptions of their product, using case examples to support the evidence presented. The purpose of this FOA is to inform the audience on the plethora of manipulative and persuasive language used in advertising for ‘supposedly’ healthy products, while the target audience is Australian T.V. viewers 18-50 who are interested in the influence of advertising. The context of the piece is based on today’s world of marketing and how persuasive advertising strategies can influence Australian consumers.
Though Ira C. Herbert was correct that Coca-Cola had used the phrase “It’s the real thing” before Grove Press, Richard Seaver’s response was more persuasive. Herbert’s letter was formal and dry, while Seaver’s adopted an ironic tone to degrade Herbert’s case. The combination of appeals present in Seaver’s letter, when compared to Herbert’s reliance primarily upon logos, construct an argument that is
v. VIP Prods., LLC 666 F. Supp. 2d 974 (Mo., 2008) Anheuser-Busch makes a distinction between confusing and non-confusing parodies, the latter being protected as a parody. The important factors in the case were that the price point of the products was the same, they were directly competing goods and the survey showed that there was a level of confusion (30.3% were confused), in addition, consideration was placed on irreparable harm caused by the defendants use of the mark, the priority lay with the first to register the trademark, lastly the District Court considered public interest, i.e. whether the public was deceived. Similarly in Starbucks Corp v. Wolfe’s Borough Coffee Inc., 588 F3d 97 (2d Cir. 2007) the court distinguished Louis Vuitton S.A. v Haute Diggty Dog, LLC, 507 F.3d 252 (4th Cir. 2007) by holding that if (as in the Louis Vuitton case), the mark is used in non-competing goods, the defendant conveyed that it was not the source of the plaintiffs product and if the actual use of the mark does not impair the distinctiveness of the plaintiff’s mark there may be an argument in favor of the defendant, however, if the defendant’s humor is not conveyed to the public, and does not increase the public identification of the plaintiff’s mark with its mark it will fail to establish
Today’s society is full of products that have numerous varieties. But, little do customers know about the time before when there was one type of each product. In Malcolm Gladwell’s “Ketchup Conundrum” article, he offers many different situations providing an explanation on how some products came to be, and how some name brands made their way into the business world. Consumers are lucky today that there is almost any variety of product to fit their wants or needs.
However prior to the modern understanding of Consumer Rights there was a understanding of Caveat Emptor – Buyer Beware –this has been a fundamental premise of consumer wellbeing prior to World War ‖ , relation to transactions, principle that the buyer purchases at his own risk in the absence of an express warranty in the contract . This common law rule assumes that buyers and sellers are in an equal bargaining position. However there has been evident change in consumer rights which have contributed to the precedence of using Caveat Emptor is no longer acceptable, apparent in the case ACCC v Hewlett Packard Australia (HP), illustrated that no longer can a company ...
The procedure is not simple enough. The consumers' Association reported in 2000 that the process was still 'quite an ordeal' and the level of formality varied widely. The submissions of both the National Consumer Council and the Na... ... middle of paper ... ... raise to an appeal.
This form of deception is important due to the false, visual claims it presents, with no regard of consumer feelings or assumptions about the
It is the use of false or misleading statements in advertising (Alessi, 2016). This is due to the fact that, the chicken bucket bought by the plaintiff was not similar to the one shown in advertisement. She claimed that it was under filled as it had only 8 pieces of chicken. Anna L. Wurtzburger, the plaintiff said that, in the advertisement the bucket is overflowing with chicken as oppose to the one she bought form KFC. Moreover, as claimed in ad, the chicken bucket was not sufficient for the
“Copyright is a fundamental right of ownership and protection common to all of the arts” (O’Hara & Beard, 2006, p. 8). “It is a form of intellectual Property (IP)” and it gives the owner exclusive rights to the copyright (O’Hara & Beard, 2006, p. 11).
For example, most people who would want a candy similar to M&M’s, would buy M&M’s, not Hershey’s unique version of M&M’s. While Hershey’s tried to convey to its consumers that Kissables could be an alternative to M&M’s, its message fell short because of consumers’ interpretation of the message. Simply put, consumers could not comprehend Hershey’s Kissables because they interpreted it as merely a knock-off product. The taste also fell short to the standards of consumers. Moreover, Hershey’s had altered the taste of the product awhile after it was released, making it undesirable to many people.
In this day and age companies have mastered the technique of misleading customers by fabricating false claims about a green product or service that they swear to provide. This insincere display of information is called ‘Greenwashing’, a spin-off of ‘Whitewashing’. Greenwashing could be said to be a global phenomenon and it’s commonly seen in advertisements, on products packing, websites, emails, speeches, and videos (just to name a few). Greenwashing is a thought out process, a planned and typically well designed campaign. There is a wide range of reasons why companies are eager to partake in greenwashing; divert attention for regulatory change, to persuade critics or consumers, expand the company's market, and to make the company seem appealing. The goal of this paper is to provide three examples of ‘greenwashing’ and to relate these examples to Downing et al. concepts.
Lack of brand awareness. Our company has a strong image in other countries. But as we introduce our product into our new market where we may not have competitors with similar products, we may have competition with a variety of related products. We will address this issue with heavy and aggressive promotion emphasizing in our products’ nutrition facts.
Intellectual property (IP) is defined as property that is developed through an intellectual and creative processes. Intellectual property falls under the category of property known as intangible rights, which includes patents (inventions of processes, machines, manufactures, and compositions of matter), copyrights (original artistic and literary works of), trademarks (commercial symbols), and trade secrets ((product formulas, patterns, designs). Intellectual property rights has a significant value to both individuals and businesses, providing in the case of large companies, over one half of their value on return. Since intellectual property rights are so important to the U.S. economy and its citizens, federal and state law provides protection, for example, civil damages and criminal penalties to be assessed against infringers. Due to the importance of intellectual property to a business, I don’t think that its protection and enforcement is going to be a thing of the past.
Piracy is a form of theft. Specifically, it refers to the unauthorized copying or use of intellectual property. Intellectual property is knowledge or expression that is owned by someone. There are three major types of intellectual property: 1) creative works, including music, written material, movies, and software, which are protected by copyright law; 2) inventions, which are protected by patent law; and 3) brand-name products, which are protected by trademarks. Many of the issues surrounding piracy have to do with the difference between intellectual property and physical property. A CD, for example, is a piece of physical property, but the songs on the CD are intellectual property. A customer in a record store can purchase a CD, but someone else still owns, or more precisely, has the copyright to the songs on the CD.
Intellectual property is information, original ideas and expressions of the persons mind that have profitable value and are protected under copyright, patent, service mark, trademark/trade secret regulation from replication, violation, and dilution. Intellectual property includes brand items, formulas, inventions, data, designs and the work of artists. It is one of the most tradable properties in the technology market.