What are the different types of misleading & deceptive conduct disputes?
A misleading or deceptive / passing off dispute can arise in two ways:
1. A competitor is using a brand, packaging or other indicia that is too similar to yours.
2. A competitor considers you are using a brand, packaging or other indicia that is too similar to theirs.
Claims of misleading and deceptive conduct pursuant to the Competition and Consumer Act can also arise where you (or a competitor) consider that a statement or representation made by a competitor (or by you) about its business, product or services is inaccurate or incorrect and misleads the reasonable consumer.
When has misleading & deceptive conduct occurred?
Misleading and deceptive conduct is essentially a legislative version of the common law tort of passing off. The two causes of action often go hand in hand. To show that a party 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.
What are my options for resolving a misleading and deceptive conduct dispute?
There are two options for resolving a misleading and deceptive conduct dispute, or a claim made against you by another party.
1. Misleading and Deceptive Conduct Dispute Resolution
While a strong litigation strategy might be the best approach in certain circumstances, often the preferable commercial outcome (particularly when defending a misleading and deceptive conduct claim) is to use alternative dispute resolution (ADR) methods such as negotiation or mediation to facilitate communication between the parties to reach a settlement to the dispute. If you are the party asserting that a competitor has engaged in misleading and deceptive conduct, we will prepare an appropriately worded warning notice or letter of demand to be sent on your behalf. If you have on the other hand received a letter of demand, we will provide you with clear advice on where you stand and develop an appropriate response to be sent on your behalf. In both instances, these initial correspondences will then open the lines of communications between the parties (or their lawyers) which creates an opportunity to explore whether a settlement commercially favourable to you can be achieved in the early stages of the dispute. In the majority of cases, misleading and deceptive conduct disputes will settle without the need for legal proceedings being commenced. Misleading and deceptive conduct and passing off disputes are often coupled with related intellectual property disputes such as trade mark or copyright infringement. Our intellectual property lawyers have a strong track record of achieving commercially relevant and favourable results for our clients.
2. Misleading and Deceptive Conduct Litigation
While we always put in place strategies to explore settlement opportunities sometimes the adoption of an aggressive litigation strategy is unavoidable and/or a necessary commercial strategy. At the start of any litigation we provide you with a clear roadmap showing you how a matter might unfold, with the timeframes and costs associated with each of those stages. We keep you informed of progress and fixed fees for every stage of the litigation process with what we call a Fixed Fee Litigation Structure. Also with our fixed fee project based approach it means you can take the matter in stages and retain certainty, control and transparency on your legal spend.
Our intellectual property lawyers have litigated in various jurisdictions including the Federal Court of Australia and Federal Circuit Court of Australia and bring a wealth of intellectual property experience to devise the strategy best tailored to your needs and those of your business.
HOW CAN ACTUATE IP ASSIST?
It is vital that you obtain accurate, specialist advice on how best to deal with misleading and deceptive disputes and related intellectual property infringement claims for your particular circumstances. Actuate IP will work with you to manage the dispute resolution process and if necessary the litigation process. As a starting point we will invest time at the outset to understand the nature of your dispute and how it relates to your business and what your business wants to achieve from the dispute – whether you are enforcing your reputational rights or defending claims made by another business against you. With this understanding we will provide you with a detailed and considered Fixed Fee Proposal that provides you with initial recommendations and fixed fee options on how to approach the dispute in a way that will achieve the right outcome for you. You can then decide whether our firm will be the right fit for your business.