Read the latest legal commentary by experienced practitioners and industry leaders. Here's my General Editor's note that gives a flavour of what's covered. There are seven articles in this issue! And the content is diverse yet relevant. Enjoy! 

​Read the latest legal commentary by experienced practitioners and industry leaders. Here's my General Editor's note that gives a flavour of what's covered.

The latest issue of LexisNexis' Australian Banking and Finance Law Bulletin has just been released. We have another amazing line up of experienced practitioners covering recent case law as well as current hot topics. Read my General Editor's note to get a taste of what's covered.

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".

In a judgment handed down on 28 July 2013 in the Supreme Court of Victoria, a guarantor contended that there was no evidence that he had executed the guarantee in question because his signature was not witnessed, and as such he was not personally liable. 

In trying to get out of a guarantee that he gave as director of the borrower company, the guarantor’s defence did not involve denying that the document bore his signature or that he did not give a guarantee, but rather that the guarantee was not “properly and duly executed”. This defence did not sit well with the judge who said “whatever that means”. The judge also noted that there was no evidence that might otherwise explain what looked like a routinely executed guarantee was not what it seemed to be. By now you would have guessed the judge’s decision - that the guarantor was liable and he had to honour the guarantee.

This case dealt with a number of complex legal issues but this aspect of the case is easy to understand. The moral of the story is this – providing a guarantee is serious business. Financiers often require the directors of a company borrower (SMEs as well as big corporations) to give personal guarantees before providing finance for business purposes. It will be wise for a guarantor to seek independent legal advice (and perhaps independent financial advice too) before entering into a guarantee. And the courts are probably not going to be sympathetic to a guarantor who tries to escape his or her obligations, especially when the basis of the defence is unrelated to the authenticity of the signature but a technicality regarding the manner in which the signature was witnessed. 

Contact us if you need advice on going guarantor.