Misleading or Deceptive Conduct & Passing Off

The Australian Consumer Law regulates against businesses engaging in misleading and deceptive conduct or is likely to mislead or deceive. The purpose of the Australian Consumer Law is to protect the consumer.

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What is misleading & deceptive conduct?

In the context of intellectual property disputes, misleading and deceptive conduct can arise in number of ways. For example, a competitor using a trade mark that is the same or too similar for similar business activities to another business’ trade mark can amount to misleading and deceptive conduct. For this reason this cause of action often is coupled with a trade mark infringement dispute.

Other types that could also fall in this category of conduct includes use of packaging or other marketing indicia that is too similar, making comparative statements about a competitor’s product that is inaccurate or statements about a business’ own products or services which are inaccurate. Remaining silent or withholding information can also amount to misleading and deceptive conduct.

The common law tort of passing off is similar to misleading and deceptive conduct. The two causes of action often go hand in hand in the context of trade mark and marketing get-up related disputes. To show that a business has engaged in passing off, the complaining party needs to show that it (a) has the relevant level of reputation in its relevant trade mark, logo or other indicia that it is saying is being impinged upon, (b) there has been misrepresentation and (c) that as a result there has been actual or a likelihood of damage to the complaining party’s reputation.

How do I protect my business?

Like any business expense, deciding to defend or enforce your rights in a misleading and deceptive conduct dispute requires a careful cost benefit analysis. We understand that. Our approach is to understand your business objectives, understand where any potential dispute resolution strategy or, if required, litigation, fits within those objectives and then provide you with all your relevant options and strategic considerations.

How we can help you

  • Misleading and deceptive conduct / passing off advice, strategy & recommendations
  • Misleading and deceptive conduct / passing off disputes and related dispute resolution strategy
  • Misleading and deceptive conduct / passing off litigation proceedings in the Federal Circuit Court of Australia or Federal Court of Australia
  • Preparation of any resulting settlement agreements

Our Misleading or Deceptive Conduct & Passing Off Team

Colin Cheung
Principal | Lawyer @ Actuate IP
Cameron Lang
Senior Associate | Lawyer @ Actuate IP
Paola Rios
Legal Projects Administrator & Trade Mark Attorney @ Actuate IP
Amy O’Bryan
Associate | Lawyer @ Actuate IP