Have both companies been selling their products simultaneously in Australia for ten years?
There is high probability that the two companies have been selling their products simultaneously for the past ten year. Generally Under trademark act of 1995, companies are required to have a trademark for their goods so as to differentiate goods and services offered or dealt with by other businesses. MaxEm Pty registered its Trademarks so as to make enable its customers to easily recognize the source their goods. By looking for particular identifying sign that is the love shape of the bottle, they quickly identify the type of drink they want. Trademarks also offer manufacturers and motivation to devote in the quality of their products. In this case, MaxEm Pty has adopted various signs and symbols so as to distinguish their product from other manufacturers and this means that it has the rights of the trademark. Nevertheless, Chivoy pty ltd manufactures has duplicated most of the distinguished features such as the shape of the bottle, the flavor and the content. Chivoy limited manufacture and sell their drink using the mark of the love shaped bottle the use of that sign causes a likely confusion among customers, because they will be misled into thinking that the drinks have been made by MaxEm pty limited. Therefore, it’s very challenging for consumers to differentiate the origin and quality of the two products the only probable notable difference between the two products would be the pricing and this will be the determining factor on which sell more.
What types of conduct may be considered ‘misleading or deceptive’ for the purposes of section 18 of the Australian Consumer Law
According to the Australian Consumer Law that is found in schedule 2 of the Competition and Consumer Act 2010 initially the Trade Practices Act 1974) restricts conduct by companies in trade or commerce that can be misleading or deceptive or is probable to mislead or deceive. The Act affirms that business should not, in trade or commerce, be involved in conduct that is misleading or deceptive or is likely to mislead or deceive. Misleading or deceptive conduct can encompass gestures, spoken or written words, body language, silence or failure of response. Organizations may engage in misleading or deceptive conduct by motive of the actions of its officers, employees or agents (ACL, 2011).Consequently, if an organization owns the rights to a given trademark and another company uses similar sign to market its products. The chances of confusion are so high. Specifically, the use of a trademark in relation with marketing a product amounts to trademark infringement incase it’s liable to cause customer uncertainty as to the origin of those products or as to the funding or authorization of such products
In accordance with the case study illustrated inline with section 18 of the Australian Consumer Law, Chivoy has engaged in some conducts that can be considered as misleading or deceptive. When MaxEm registered as trade marks the shape of the bottle and the word LiquiLove in Class 32 concerning non-alcoholic aerated drinks, it rightfully owned the two signs for their products. By trying to duplicate the trade mark sign, Chivoy, has engaged in deceptive and misleading conduct. This is basically because; it intends to entice the customers of MaxEm since the company could have already established a large customer base. Basically, Chivoy Limited is misleading and deceiving consumers to purchase goods that resemble those from MaxEm. By using a very similar mark on the same good like that of MaxEm, Chivoy limited may face claims of infringement if the symbol has been used without consent. This is clear since the marks are sufficiently close in, appearance, or meaning so as to cause confusion. Using another company’s trade mark is in opposition to the law under Section 18 of the Australian Consumer Law (ACL). This referred to as ‘passing off’ and means to wrongfully using another organization’s business status. Engaging in conduct that is misleading or deceptive or is liable to mislead or deceive consumers is an offence under the Competition and Consumer Act 2010
Bibliography
Competition and Consumer Act 2010 Schedule 2,(2011) The Australian Consumer Law”. Commonwealth Consolidated Acts. Australasian Legal Information Institute.
