Detailed Analysis of Marketing and Advertising Law: Case Solutions

This document provides a detailed analysis of three case studies related to marketing and advertising law. The first case examines trademark infringement, focusing on the manufacturer's claim of ownership and potential consumer confusion. The second case delves into the concept of 'passing off' and misrepresentation, assessing whether one business created an impression of similarity with another. The third case explores remedies available to a German company against an Australian company for trademark infringement, false advertising, and deceptive marketing practices, including the use of similar branding and misleading claims about product origin and content. The analysis references relevant laws, including the Trade Marks Act 1995, intellectual property law, and the Australian Consumer Law (ACL), offering legal arguments and potential outcomes for each case, alongside a bibliography of relevant sources.

MARKETING AND ADVERTISING LAW
Name
Course
Date

2
Question 1
Common Laws
The issue here is to verify if the manufacturer could claim the right ownership of the
trademark “Lazeabouta”, Secondly manufacturer must prove that consumers actually confused
between the two brands, third that the mark ‘Lazeabout’ were similar in both by visual and by
sound, also the manufacturer must show that the importer was offering the same services as them
and that the targeted customers were also similar.1
Rule: Under the Trade Marks Act 1995 article 17, the manufacturer is required to register the
trademark which will identify them solely as the brand owners.
Application: The court cannot grant the trademark right to the manufacturer since it was not
registered by them,2 but based on other bylaws the importer would be found guilty of
infringement, but the court will have to consider the other factors mentioned above.
Therefore the allegations of the manufacturer can be proven under the trademark law.
Question 2
a) Issue: whether an impression was created by one business to mean that their product and
services are one and the same with the other under passing off.
Rule; Passing off under intellectual property law section 120 means misinterpretation by a
business showing that their products are one and the same with another.
1Ardi Kolah, Essential Law for Marketers. London: Kogan Page, 2013.
2Virginia E Scholtes, "TRADEMARK LAW: The Lexmark Test for False Advertising Standing:
When Two Prongs Don't Make a Right." Berkeley Technology Law Journal 30, (January
1, 2015): 1023

3
Application: The appellants argument cannot stand in court since the two businesses were
different, the defendants business dealt with garbage collection while the latter was associated
with clothing and toys hence the consumers could not confuse between the two.
Conclusion: It is clear that the defendants intention was not to breach the law since no
impression was created considering the names were also differentiated with one being ‘Wombles
Ltd’ and the other ‘Wombles skips’ skips here suggesting the nature of the business.
b) Section 18 of the Australian consumer law discourages companies from deceiving
customers by giving false information about their product or services. The appellant
should prove if this was the intention of the defendant.3
Question 3
a) Remedies The German Company Can Take Against The Australian Company
Issue: The German company should prove that the mark used by United Breweries was actually
similar to theirs and that they owned the trade mark as it was registered by them. Also the
company should prove intentional behavior of the other company to mislead the consumers into
believing that the products of the two companies were one and the same by using the brand
which is similar by sound and also by indicating that the beer was German made when actually it
is not.4
Rule; Passing off is a law that prohibits businesses from false misinterpretation of goods and
services under the 1995 Act.
3 Scholtes,. 2015. "Trademark Law: 1023.
4. Heather Dunn, "Five best practices in advertising law." Marketing News, 2015., 20,

4
Application; This breaking of law by the Australian manufacturer gives the Germans a good
basis for taking action and moving to the courts where a court ruling can be granted5 and if the
plaintiff succeeds in proving their case the defendant will be required to pay for damages caused.
b) Issue: The United breweries was wrong since they claimed to be associated with the
German company by using similar bottle to that used by the Germans and also by using label
which had German flag implying that their beer was from Germany which was a lie. They also
lied about the contents of their beer when in fact they were using one of their old beer only under
a different name.
Rules: Under ACL the companies are not supposed to use false information regarding the
product when marketing.
Application: The German company can use these points to take action against the united
breweries under the Trade Practices Act section 120(1) because they breached the law in more
than one way, and request to be compensated for the damages caused or for the company to be
given public warning or seek a court hearing or file for trademark infringement.6
5 Dean Keith Fueroghne,. Law & Advertising : A Guide to Current Legal Issues. Lanham, Maryland: Rowman &
Littlefield Publishers, 2017
6 Ibid.

5
Bibliography
Dunn, Heather. "Five best practices in advertising law." Marketing News, 2015., 20,
Fueroghne, Dean Keith. Law & Advertising : A Guide to Current Legal Issues. Lanham,
Maryland: Rowman & Littlefield Publishers, 2017
Kolah, Ardi. Essential Law for Marketers. London: Kogan Page, 2013.
Scholtes, Virginia E. "TRADEMARK LAW: The Lexmark Test for False Advertising Standing:
When Two Prongs Don't Make a Right." Berkeley Technology Law Journal 30, (January
1, 2015): 1023
.