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SA Harassment by Competitor Business Online Including Facebook

Discussion in 'Commercial Law Forum' started by Simon Jones, 30 March 2015.

  1. Simon Jones

    Simon Jones Member

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    Hi Folks, your advice please. We are being imitated at every turn by another small business in a very tight consumer market (only three businesses in the State). They apologise then blame everyone else, including us, but it has now reached the blatant stage. What legal recourse, if any, is available to "encourage" them to go find their own marketing opportunities and stop trying to piggyback on ours? Issues include Facebook harassment, use of same key words, fonts, images and styling.
    Does a cease and desist letter have any value?

    Your learned responses much appreciated
     
  2. Tim W

    Tim W Lawyer

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    A cease and desist letter is the first thing you do.
    A solicitor can assist you with this.

    After that, you start thinking about a thing called "passing off".
    I mention this because if they are making themselves look like you,
    such as by the use of fonts, images, patterns, designs, name similarity,
    or using language the same way in advertising or on a website,
    such that the ordinary reasonable customer in your market
    might not be able to readily and easily tell you apart,
    then you may have some grounds to get them to stop.
    You will almost certainly benefit from legal assistance in a passing off action.
     
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  3. Sophea

    Sophea Well-Known Member

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    I agree with Tim, if there is no specific Trademark infringement that you could point to, passing off or alternatively misleading and deceptive conduct will provide a remedy where another business is craftily piggybacking on your good reputation.
    In order to prove passing off you need to show that:
    • there is a misrepresentation by the other business;
    • made in the course of trade to prospective customers;
    • the misrepresentation is calculated to negatively impact your business or goodwill;
    • and it has caused damage to your business.
    Section 18 of the Australian Consumer Law makes it an offence for a person, to engage in conduct, that is misleading or deceptive or likely to mislead or deceive in trade. The Australian Consumer Law also makes it an offence to represent or claim false affiliations or associations with another business.
     
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