AUSTRALIA. Peter Le Guay Cowley Hearne Lawyers Pty Limited

Transcription

1 AUSTRALIA Peter Le Guay Cowley Hearne Lawyers Pty Limited 1. Legislation Electronic Marketing Code of Practice Regulating e-marketing activities When: 16 March 2005 What Happened: The n Government has already acted to combat spam (unsolicited commercial electronic messages with an n link) by passing the Spam Act This came into effect on 10 April Electronic messages are defined by the Act to include messages sent by , instant messaging and Short Message Service (SMS) and Multimedia Message Service (MMS). The E-Marketing Code of Practice (Code) has been introduced as of 16 March 2005, after consultation with the marketing and advertising industry. It provides some higher standards of practice than those required by the Spam Act and is binding on parties undertaking e-marketing activities. The application of the Code is described further below. It is registered with the n Communications Authority (ACA), the government authority responsible for administering and enforcing the Spam Act. The Code provides detail on the following key areas relating to the sending of commercial electronic messages in an or SMS marketing environment in : Obtaining and maintaining consent; Keeping records of consent; Obligations in relation to viral marketing campaigns; Inclusion of accurate information about senders/message authorisers ; Provision and operation of a functional unsubscribe facility; Sending commercial electronic messages about age sensitive material; and Complaints handling. In summary, the Code automatically applies (via the Telecommunications Act 1997) to the following activities (whether an emarketing industry member is a signatory to the Code or not), being activities undertaken by individuals or organisations: to market, promote or advertise their own goods and services where sending or causing to send commercial electronic communications is their sole or principal means of marketing, promoting or advertising their own goods or services. who by contract or other arrangement with a person market, advertise or promote the goods or services (including land and interests in land and business and investment opportunities) of that person by sending commercial electronic communications or causing them to be sent. who by contract or other arrangement with a person market,

2 advertise or promote that person as a supplier, prospective supplier, provider or prospective provider of goods or services (including land and interests in land and business and investment opportunities) by sending commercial electronic communications or causing them to be sent. To the extent that any other entities engage in the above activities, they are bound by the provisions of this Code in respect to these activities. Many bodies undertaking an e-marketing activity, even if not a signatory to the Code, will need to be aware of the requirements of the Code when sending e-marketing messages to, from or within. 2. Legislation Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 New Tobacco Labelling Laws When: 1 September 2004 What Happened: On 1 September 2004 the Federal Government s revised Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 came into force. The Regulations provide tobacco companies with an 18 month lead in time to comply with the new regulations (i.e. by 1 March 2006). The new requirements are as follows: A new set of 14 health warnings comprising graphic images and explanatory messages which cover 30% of the front and 90% of the back of the pack, with graphics to appear on both the front and back of cigarette packets. Inclusion of the national Quitline number and website address on the back of the packs to provide a contact for smokers who seek assistance with quitting. A new rotation system for health warnings in order to optimise consumer learning and awareness of the health affects of smoking. This involves a rotation of each set of 7 warnings alternatively, every 12 months. Warnings are also rotated within brands over each 12 month period. Removal of the requirement for manufactures to list average levels of tar, nicotine and carbon monoxide yields on the side of the pack. Instead a quality information message on the health effects of chemicals and tobacco smoke will be required on the side of the pack. This change will highlight that there is no safe cigarette. A set of cigar specific health warnings to be displayed on cigar packaging to increase the awareness of consumers of the health risks of smoking cigars. The new regulations apply to tobacco that is manufactured in, or imported into, but does not apply to tobacco for export or cigars sold singly.

3 The regulations are designed to inform consumers in a more graphic, and perhaps confronting, manner of the health risks associated with smoking and provide them with contact details as to where they can obtain assistance to stop smoking. Failure to adhere to the regulations means that a tobacco manufacturer or importer will contravene s65d (1) of the Trade Practices Act 1974 and be guilty of a criminal offence. 3. Case note: Royal Doulton (UK) Ltd v Ghosen [2004] ATMO 32 Trade Marks and Brand Extension When: June 2004 What Happened: Brand extension occurs when a well established, familiar brand name is used for new goods or services, sometimes unrelated to the goods or services originally sold under the brand. It provides an approach to leveraging existing consumer perceptions of brands to a new product category, thus reducing the risk and cost of entering that new category. It is also increasingly relevant in the context of trade mark oppositions under s.60 of the Trade Marks Act S.60 states: The registration of a trade mark in respect of particular goods or services may be opposed on the ground that: (a) it is substantially identical with, or deceptively similar to, a trade mark that, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, had acquired a reputation in ; and (b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion. Royal Doulton (UK) Ltd (Opponent) is the owner in of the trade mark Royal Doulton for ceramic tableware, figurines, vases, glassware and other goods for the home. At the time of the above decision, it did not have the trade mark registered for eyewear nor was there any evidence that it had sold those goods under the trade mark in. However, it successfully opposed the registration of the trade mark by Anthony Ghosen (Applicant) in respect of eyewear under s60. The delegate of the Registrar of Trade Marks (Delegate) was satisfied that the words ROYAL DOULTON were only associated with the Opponent and that the Opponent used and licensed the trade mark for a range of goods in (though not for eyewear) and elsewhere. He referred to the common commercial phenomenon of brand extension and found that the public is well used to the licensing of trade marks such as that of the Opponent on a range of goods. The fact that the Opponent had in fact sold eyewear in the United States under the trade mark was support for the fact that members of the n public might expect the Opponent to extend its mark into the eyewear range. The Delegate was satisfied that there was a real and tangible chance that a substantial number of persons finding the ROYAL DOULTON mark on the Applicant s goods would be confused or deceived. The s60 ground of opposition was therefore made out. Even when on the face of it a product may seem like an unlikely brand extension, a strong reputation in a number of products will increase the likelihood of a successful opposition under s.60 of the Trade Marks Act.

4 4. Regulatory Inappropriate advertisement classification Action Advertising Standards Board intervention When: October 2004 What Happened: A complaint against Dulux for its Dulux Repel TVC was upheld by the Advertising Standards Board on the grounds that it contravened the provisions of their Code relating to violence and was unsuitable for viewing by children. The TVC features a female ghost chasing a man through his house. The man runs through a doorway into another room, and the ghost tries to follow him, by taking the most direct route - through the wall. Instead of passing through the wall, the ghost hits the wall and gets knocked unconscious, illustrating the strength and durability of new paint on the wall. The Board considered that the ghost images and the accompanying eerie soundtrack would be frightening and distressing to young viewers. Dulux s response was to state that the level of complaint was minimal compared to the overwhelming positive reaction to the TVC. Dulux did admit that due to some scheduling issues the TVC had run in some kids programs early in its on-air period that it would have been better to avoid. The advertisement s G rating was held to be inappropriate. The Board also commented that the images constituted a portrayal of the threat of violence which was not justified in the context of the product being advertised. As a result of the decision, Dulux is required to modify or discontinue the TVC. The complaint would not have been upheld if the advertisement had been appropriately classified and not shown during time slots where viewing by children was likely. 5. Regulatory Misleading or deceptive advertising Action Heavy responsibility for bold marketing claims When: January 2005 What Happened: One of 's largest travel agencies has taken action, including widespread corrective advertising, as a result of its use of advertising slogans which may have been misleading or deceptive. Flight Centre Limited, which has over 500 retail travel outlets throughout, marketed its services under the slogan "Lowest Airfares Guaranteed". It also made representations that it could use its "Global Buying Power" to get better airfare deals for consumers. A number of consumers made complaints to competition watchdog, the n Competition and Consumer Commission (ACCC) about the advertising. The ACCC conducted its own investigations into the accuracy of the slogans and formed the view that: the "Lowest Airfares Guaranteed" slogan was a representation that

5 Flight Centre's airfares were guaranteed to be the lowest available when, on the basis of the ACCC's investigations, this was not always the case; and Flight Centre s use of this slogan was misleading or deceptive in breach of the Trade Practices Act, 1974 (Act). In respect of the "Global Buying Power" representations, the ACCC expressed concern that Flight Centre did not have this power because it does not generally buy airfares in bulk, but books them individually. The ACCC was also of the view that these representations were misleading or deceptive in breach of the Act. As a result of the ACCC action, Flight Centre provided the ACCC with courtenforceable undertakings under Section 87B of the Act, on a without admissions basis. Flight Centre accepted that some consumers may have been misled by its representations and undertook, among other things, to: 1. cease using its "Lowest Airfares Guaranteed" slogan for 5 years in any advertising or promotional materials; 2. cease using the "Global Buying Power" representations, without giving prior written notice to the ACCC (allowing the ACCC to investigate the accuracy of the claim before it is used); 3. publish 44 corrective notices in 11 major newspapers; and 4. display in the front window of each of its retail outlets, for 4 weeks, corrective notices (at least of the size of 42cm x 29.7cm) Flight Centre s share price fell after the ACCC action. In place of the Lowest Airfares Guaranteed slogan, Flight Centre now uses the slogan Price Beat Guarantee and invites consumers to Bring us a competitor s airfare and if its available we ll beat it! If consumers provide details of competitors prices, some companies will offer them lower prices for goods or services. However, this does not entitle the company to represent that it guarantees the lowest prices. That representation may lead consumers to believe that they will automatically get the lowest price from the company, whether they bring details of competitors prices or not. When making bold representations such as "Lowest Prices Guaranteed", companies have "a heavy responsibility" according to ACCC Chairman, Graham Samuel, and "must ensure that they can honour their guarantee in every case". Companies must be able to substantiate all their advertising claims or risk breaching the Act and attracting ACCC and/or other action. The ACCC has indicated that it will closely monitor the travel industry and its advertising practices. 6. Regulatory SMS Spamming Action SMS Spammer fined When: April 2005 What Happened: One of s largest online automotive sales websites, carsales.com.au Ltd, has recently been fined $6600 by the n Communications

6 Authority (ACA) for spamming, in contravention of the Spam Act 2003 (Act). Under the Act it is illegal to send, or cause to be sent, unsolicited commercial electronic messages that have an n link. Commercial electronic messages include s, mobile phone text messages (SMS), multimedia messaging (MMS) and instant messaging (im). The Act does not cover voice or fax telemarketing. The legislation sets out penalties of up to $1.1 million a day for repeat corporate offenders. The ACA took action after the activities of carsales.com.au Ltd were reported by members of the public. Carsales.com.au Ltd had copied mobile phone numbers from classified ads in newspapers, including the Trading Post, then sent those people text messages promoting its services and website. Commercial electronic messages must be sent with the recipient's consent. The recipient may give express consent (i.e. by opting in ), or consent may be inferred from their conduct and 'existing business or other relationships'. ACA Acting Chairman, Dr Bob Horton said the ACA believes that those people selling cars published their telephone numbers in classified ads only so potential buyers could contact them. He went on to say, they did not consent to receiving commercial SMS messages advertising a car sales website from a company they had no relationship with, and who collected their mobile phone numbers from the newspapers. Accordingly, no express consent had been obtained from the recipients and the ACA took the view that consent could not have been inferred merely because their mobile phone numbers or addresses had been published. There are some limited exemptions for certain business-to-business communications. However, carsales.com.au Ltd s CEO Greg Roebuck said it was unfair that his company was fined, when marketers who use call centre to contact customers by phone were not deemed to be spamming, as the latter is far more intrusive and unwelcome that SMS. Since the Spam Act came into force in April last year, the ACA has required 200 businesses to amend their practices to comply with the Act. Of those required to change their practices, three were fined by the ACA for more substantial breaches, three were issued with formal warnings and one gave an enforceable undertaking. Companies and marketers need to take note when sending SMS or or other commercial electronic messages that they have the express consent of the recipient to do so. Especially as spamming is not necessarily confined to messages sent in bulk. Under n law a single commercial electronic message can also be considered spam.