Overview
Intellectual property (IP) rights such as trade marks, designs and copyright are fundamental to marketing and brand strategy. There are, in addition, other laws and forms of regulation that are critical in this area, such as the consumer protection provisions of the Trade Practices Act 1974 (Cth). We have a number of legal experts with a depth of experience who advise on issues relating to branding, marketing, advertising and product promotion, including both commercial and contentious issues.
The regulator, the Australian Competition and Consumer Commission (ACCC), regularly scrutinises claims made in advertisements and marketing materials. The legislation the ACCC administers in this area often provides for significant penalties. For example, the ACCC can enforce fines of over A$1 million dollars per offence for infringement of the consumer protection provisions of the Trade Practices Act. Other regulators, such as the Australian Securities and Investments Commission (ASIC) also scrutinise claims made in advertisements and marketing materials. When advising clients in this area, we help clients understand their legal obligations and assist them in implementing processes and protocols to minimise the risk of a contravention occurring.
The range of matters on which we have advised include:
- advising and representing clients in discussions and actions initiated by the ACCC, and in some cases negotiating undertakings with the ACCC in relation to advertising, marketing and labelling
- litigation to challenge the advertising of competitors, or to defend our client’s advertising against challenge
- providing advertising copy review, including advising in relation to misleading and deceptive advertising, in particular comparative advertising, and
- drafting and negotiating advertising and sponsorship agreements.
In addition to laws regulating advertising there are a multitude of laws which prescribe specific labelling requirements for certain products. We advise clients on labelling requirements in a range of industries, including pharmaceuticals and food products. Our advice outlines the client's legal obligations, provides a view on the accuracy and appropriateness of their product labelling and marketing information and provides recommendations.
Freehills also advises on other aspects of product promotion, including product recall procedures, product liability issues, anti-counterfeiting and parallel importation strategies.
Experience
We have advised some of Australia’s leading consumer brand companies on advertising and marketing issues, including GlaxoSmithKline, ING Australia, Pacific Brands and Diageo. We have:
- acted in litigation relating to allegedly misleading advertisements, including in seeking or defending urgent interlocutory injunctions and challenging advertisements
- advised and represented clients in discussions and actions initiated by the ACCC, and in some cases negotiated undertakings with the ACCC in relation to advertising and marketing
- advised on the regulatory regimes applicable to advertising and marketing, including dealing with the Australian Self Medication Industry, Medicines Australia and the Therapeutic Goods Administration
- provided advertising copy review, including advising in relation to misleading and deceptive advertising and in particular comparative advertising, and
- advised on the drafting and negotiation of advertising agreements.
Our advice in this area regularly includes advising clients regarding their product labelling obligations.
Product recall and product liability
Freehills has also advised a number of clients on product recall and product liability issues.
Anti-counterfeiting
Our anti-counterfeiting experience includes preparing national and international anti-counterfeiting strategies, obtaining and executing Anton Pillar orders, search and seize orders, liaising with Australian Customs in relation to Customs notices, issuing cease and desist letters, commencing proceedings for trade mark infringement, seeking urgent interlocutory relief and utilising alternative dispute resolution methods. We have also worked with investigators which provide market watch services. We have advised the owners of many luxury goods, footwear, beverage and pharmaceutical brands on anti-counterfeiting strategy.
Parallel importation
We have acted for a number of clients in relation to parallel importation litigation.
Working with you
The Freehills intellectual property practice is comprised of a full service patent and trade mark practice in addition to specialist lawyers in IP commercialisation and IP litigation. The depth and breadth of the patent and trade mark practice is unlike that provided by any other commercial law firm in Australia.
Our dedicated team of attorneys, lawyers and support staff are highly trained, not only to excel in the delivery of legal services, but also to be passionate about understanding the application of the law to the real world commercial context of our clients’ businesses. Our team prides itself on its responsiveness, commerciality and thought leadership.
We are passionate about the work we do. Our objective is to deliver an outstanding result for our client that leads to an ongoing relationship.
