Each year, organisations and firms spend thousands of dollars purchasing commercial information from brokers and regulatory sources like ASIC and PPSR in the process of delivering their core services. Commercial Information Management (CIM) is an emerging discipline being implemented by these organisations and firms seeking to leverage and maximise the value of this information.  

In an on-demand webinar provided exclusively to ALPMA members (by Encompass Corporation, ALPMA's Summit 2014 Live and On Demand Partner), I outline the principals of CIM and the 4-stage process of CIM. I also look at the benefits of CIM and how to maximise your return on information.

Get ahead of the pack.  Learn about CIM.

The latest issue of LexisNexis' Australian Banking and Finance Law Bulletin has just been released. We have an amazing line up of authors contributing 7 quality articles. Read my General Editor's note to get a taste of what's covered.

What is passing off?  Revlon’s Mitchum Clinical deodorant v Unilever's Rexona and Dove deodorants

To put simply, passing off is where there is a misrepresentation that a business’ goods or services are those of another business.  Under an action for passing off, protection is given to those who have developed goodwill or reputation.  For a claim of passing off to be successful, the claimant has to prove that a misrepresentation has been made by another in the course of trade to actual or prospective customer that injures and causes damage the claimant's business, goodwill or reputation.  The misrepresentation can be one that relates to the likeness of a product or the trade name of a service provider.

On 19 August 2014, Gleeson J of the Federal Court of Australia (FCA) handed down the latest judgement in this area of law - Unilever Australia Ltd v Revlon Australia Pty Ltd (No 2) [2014] FCA 875.  You can read the full judgment on the FCA’s website. 

The parties involved, being Unilever and Revlon, are competitors in the supply of deodorant products.  Unilever's deodorants are branded Rexona and Dove, where as Revlon's deodorant is branded Mitchum Clinical.  The initial action was by Unilever, who claimed that Revlon breached the Australian Consumer Law in terms of the representations Revlon made in advertising and on the packaging of Revlon’s deodorant.  In response to Unilever’s claim, Revlon counter-claimed that Unilever breached the Australian Consumer Law in the same way, and in addition, engaged in passing off.  Revlon wanted to obtain an injunction so as to restrain Unilever from selling or marketing Rexona clinical protection products in Revlon’s new packaging.

In his judgement, Gleeson J explained why Revlon was unsuccessful in restraining Unilever in the use of the particular packaging.  In essence, it was determined that it would be unlikely that a reasonable consumer would confuse the packaging of the two competing brands.  It other words, Revlon failed to demonstrate that Revlon’s packaging had become so distinctive that in the minds of the potential customer that Revlon had acquired trade reputation associated with it.

This is an interesting case to read, with important lessons to be learnt.  In matters relating to consumer protection, for lawyers acting for SMEs and large corporations alike, it is worth remembering that, in addition to proving deception or that confusion has been caused, actual proof of damage is required to succeed in an action for passing off.  

This post first appeared on CPD Interactive's "Legal Natter's Blog".

On 31 July 2014, ASIC released Report 402 that outlines enforcement outcomes it has achieved during the period 1 January 2014 to 30 June 2014.  As Australia’s corporate, markets and financial services regulator, ASIC has the role of identifying and dealing with those who break the law.  ASIC does this through their detect-understand-respond approach:

• Detect misconduct or the risk of misconduct by gathering intelligence
• Understand by analysing the intelligence
• Respond to misconduct or the risk of misconduct using regulatory tools such as enforcement action

In the first half of the 2014 calendar year, ASIC reported that it has achieved 256 enforcement outcomes, with 83 enforcement outcomes in the “market integrity”, “corporate governance” and “financial services” areas, and 173 in the “small business compliance and deterrence” area.  In particular, ASIC has focused on the activities of credit providers.  This is because ASIC considers that the consumer credit industry has now had sufficient time to familiarise itself with its obligations under the National Consumer Credit Protection Act 2009 (Cth).  As such, if ASIC becomes aware of breaches of the law, it is now more likely to take enforcement action to address its concerns.  During the 6-month period covered by the report, ASIC has achieved a significant number of outcomes relating to consumer credit, including two criminal convictions, five infringement notices paid (totalling $71,400), six individuals permanently banned from engaging in credit activities, four individuals banned from, or giving an undertaking to refrain from, providing credit for between three and seven years, and seven Australian Credit Licences cancelled.

While ASIC will continue to take enforcement action in any area that it administers, ASIC has identified a number of enforcement areas it will be focusing on.  These are:

• Treatment of confidential information
• Auditor and liquidator standards
• Advertising of financial products
• Benchmarks (relating to, for example, LIBOR and BBSW)

You can access ASIC’s full report (Report 402) via ASIC’s website.

This post first appeared on CPD Interactive's "Legal Natter's Blog".