Copyright (c) 2009 All rights reserved. http://works.bepress.com/damien_millen Recent documents in Damien Millen en-us Sun, 08 Nov 2009 14:37:33 PST 3600 http://works.bepress.com/damien_millen/10 http://works.bepress.com/damien_millen/10 Fri, 13 Feb 2009 11:43:51 PST The Federal Court recently considered the application of a s 52 of the Trade Practices Act 1974 (Cth) (the Act) to the sophisticated marketing practices of pharmaceutical companies extolling the virtues of complex products to a specialised audience. In AstraZeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2005] FCA 1645, the court was required to consider whether suggesting to doctors that a drug offered patients "total control" over symptoms of asthma could mislead or deceive. The case, which was affirmed on appeal, is important for several reasons. Damien Millen http://works.bepress.com/damien_millen/11 http://works.bepress.com/damien_millen/11 Fri, 13 Feb 2009 11:43:51 PST The biotechnology industry is shifting its value creation emphasis from R&D to manufacturing and market. Business models need to keep pace with this evolution. This paper reports on a single-case study of a new biotechnology firm, EpiTan Limited, and the life cycle stages it has progressed through in parallel with the Australian biotechnology industry. EpiTan offers an alternative business model to that typical of New Biotechnology Firms (NBFs), which sets the agenda for fast-tracking the development of biotechnology companies through effective product selection and market targeting. It has managed to overcome the initial obstacles that typically hinder the growth and competitiveness of an NBF, by being founded around a robust IP portfolio and a board and management team with high level international expertise. EpiTan has built strong international networks and strategic alliances to gain efficiencies and maximise its global competitiveness. Copyright © 2004-2006 Inderscience Enterprises Limited. All rights reserved. Damian Hine http://works.bepress.com/damien_millen/7 http://works.bepress.com/damien_millen/7 Fri, 13 Feb 2009 11:43:50 PST Introduction The Federal Court's decision in Tooheys Pty Ltd v Coopers Brewery Ltd [2003] FCA 148 explores the use of particular words in product brand names. Difficulties arise when common words have been incorporated into a name and are used by competitors to describe an alternative offering. The risk is particularly potent where a word's "double meaning" forms the core part of a marketing campaign. Damien W. Millen http://works.bepress.com/damien_millen/8 http://works.bepress.com/damien_millen/8 Fri, 13 Feb 2009 11:43:50 PST Introduction The Federal Court's decision in Australian Competition & Consumer Commission (ACCC) v Woolworths Ltd [2002] ATPR 41-899 in some ways mirrors recent "Australian made" cases. In Woolworths, an advertisement contained information about the source of primary products. The court's attention was focused not on "country of origin" but rather "local region of origin" issues. Damien W. Millen http://works.bepress.com/damien_millen/9 http://works.bepress.com/damien_millen/9 Fri, 13 Feb 2009 11:43:50 PST Introduction The Federal Court recently considered the implications of businesses using similar trading and website domain names. The court's decision in Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2002] ATPR (Digest) 46-216 illustrates the approach adopted in cases where the establishment of websites with similar domain names is said to mislead or deceive. Damien W. Millen http://works.bepress.com/damien_millen/6 http://works.bepress.com/damien_millen/6 Fri, 13 Feb 2009 11:43:49 PST Introduction: Recent Federal Court decisions highlight a renewed vigour on behalf the of the Australian Competition and Consumer Commission (ACCC). In the last year (2003-2004) the regulator has been aggressively targeting advertising which it considers to be misleading and deceptive. This strategy has often resulted in the accused party admitting to the alleged conduct and the court sanctioning robust orders drafted by the ACCC. The Thorn case (ACCC v Thorn Australia Pty Ltd [2004] ATPR 41-984) typified this theme - with an added twist. In addition to the alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA) the ACCC also accused Thorn Australia Pty Ltd (Thorn) of breaching s 53C of the TPA. Section 53C requires that advertisements showing part of the consideration for the supply of goods or services should specify the "cash price" (at 48,525 per French J). The question before the court was whether an advertisement setting out the periodic rent payable for the lease of goods should also show the total rent payable over the term (at 48,525). Damien W. Millen http://works.bepress.com/damien_millen/5 http://works.bepress.com/damien_millen/5 Fri, 13 Feb 2009 11:43:49 PST Extract: The complexity of the internet makes it fertile ground for misleading or deceptive conduct. One area of potential confusion is domain name registration. In .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 the first respondent sent out domain name notices in the mail that played on this confusion. The respondents were accused of being in breach of s 52 of the Trade Practices Act 1974 (Cth) (the Act), as well as contravening s 64 (2A) of the Act which prohibits demands for payment in respect of unsolicited services. Damien W. Millen http://works.bepress.com/damien_millen/4 http://works.bepress.com/damien_millen/4 Fri, 13 Feb 2009 11:43:49 PST Introduction: In Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] ATPR 41-933 (the Fat Blaster case) the Federal Court examined dual actions in passing off, and misleading and deceptive conduct. The case involved two weight loss products with similar names, packaging and purpose. Of particular interest was the court's observations regarding market research and expert appreciation consumer behaviour. Damien W. Millen http://works.bepress.com/damien_millen/3 http://works.bepress.com/damien_millen/3 Fri, 13 Feb 2009 11:43:48 PST Extract: Misleading advertising in the financial services sector is always of concern to consumers and, in particular, the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC). Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] ATPR 41-980 (Saatchi) is of significance not necessarily because it involved deceptive advertising by a major insurer, but also because the regulators chose to take action against the insurer's advertising agency. Damien W. Millen http://works.bepress.com/damien_millen/2 http://works.bepress.com/damien_millen/2 Fri, 13 Feb 2009 11:43:48 PST Introduction The Federal Court's decision in Australian Competition and Consumer Commission (ACCC) v Dell Computers Pty Ltd [2002] ATPR 41-878 (Dell) highlights the court's approach to what constitutes the "price" of goods advertised, when a compulsory delivery charge is levied. Difficulties can arise when there is no retail presence and goods need to be sent to the end customer. In the case of a company engaging in e-commerce or telephone sales, is a compulsory delivery charge a "fee for a service" or "part of the consideration" for the purchase of goods? Damien W. Millen