INTRODUCTION TO MARKETING LAW
Text books
Varey et al, (2014) New Zealand Law for Marketers, Wellington, LexisNexis
CCH Editors, (2007) Sales and Marketing Law in New Zealand. Auckland: CCH.
S Frankel (2011) Intellectual Property In New Zealand (2nd edition) Wellington Lexis Nexis
C Hawes (ed)(2014) Butterworths Introduction to Commercial Law (3rd edition), Wellington, Lexis Nexis
INTRODUCTION
Marketing law is a shorthand term for the legal rules, remedies and sanctions that impact on marketing activities.
Marketing law has different origins, both statutory and common law
There are also strong elements of self-regulation, in particular the Advertising Standards Authority.
There are issues of marketing ethics that overlap with legal sanctions.
|Ethical but Illegal |Ethical and Legal |
|Unethical and Illegal |Unethical and Legal |
ISSUES AND THEMES
The law regulates the four elements in the marketing mix: Product, Promotion, Price and Place. This paper will concentrate on the first three elements by looking at 3 categories of marketing activities: • Protection for name and image – includes legal issues relating to the name, image, goodwill and reputation of a business. • Statements and representations – including product labelling, statements and representations made in course of advertising. • Issues associated with direct marketing under the Privacy Act 1993 and the Unsolicited Electronic Messages Act 2007.
The overall importance of the Fair Trading Act 1986 means that it will be part of all these categories.
The paper will also look at:
• Specific examples – that don’t fit very well into the three major categories. Issues covered in this section will include character merchandising; ambush marketing; and the self-regulation of marketing. It is important to realise that there is considerable overlap amongst these categories. • Ethical issues that may arise.
THE PARTIES
In a marketing situation there will generally be three interested parties: (i) the firm that is marketing the goods/services; (ii) its competitors; (iii) members of the public.
CAUSES OF ACTION AND DEFENCES
It is important to understand the statutory and common law causes of action and the defences that are available.
REMEDIES
The nature of the remedy which a plaintiff seeks is a practical consideration for marketers.
Television New Zealand Ltd v Gloss Cosmetic Supplies Ltd (1989) IPR 663
Interim Remedies
Marketing issues often require the urgent attention of the courts, for example, the use of a confusing name or the publication of an advertisement which copies another's promotional activities can cause harm which is difficult to quantify in monetary terms and can lead to on-going confusion in the market place. Interim remedies are often sought.
An interim injunction is granted by the court for the purpose of preserving the status quo until the matter can be finally determined. It often effectively settles the matter, one or other of the parties deciding that it is easier and less expensive to develop other material rather than wait until a final decision is given on the merits of the case.
A John Doe Order, a form of injunction, is available when there is evidence of likely infringement of copyright and the potential wrongdoers cannot be identified at the time of the application for the order. Traders who sell counterfeit or 'pirated' merchandise are the likely defendants as they may appear only on the day of an event, such as a rock concert or sports promotion.
An Anton Piller Order is given only in circumstances where it is clear that the defendant may seek to destroy evidence. It enables the plaintiff, accompanied by a solicitor, to enter the premises of the defendant and to seize evidence.
A Mareva Injunction restrains the defendant from removing assets, such as money, from the jurisdiction, that is taking them overseas.
Ex parte remedies may be granted after the court has heard from one party only.
Final Remedies
If the matter goes to trial then final remedies may be sought. A final injunction is one which is granted after the final determination of the matter. It is generally without limit of time. If the plaintiff can show loss then it will be entitled to damages to recompense it for the loss suffered as a result of the wrongful acts of the defendant. Alternatively, the plaintiff may seek an account of profits. This is effectively a remedy of damages fixed according to the profit made by the defendant. Normally, a plaintiff must elect either damages or an account of profits. The other useful remedy that is available is delivery up, whereby the defendant may be required to deliver up infringing copies to the plaintiff for destruction. 