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Business | LawIssue #1

The Worm Turns in the Advertising Sector

Apple Failed To Trade Mark “APP STORE”

Farmer’s Fued and a Finding of No Liability

Telstra Found To Be Misleading Consumers

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The Worm Turns in the Advertising Sector by Travis Schultz

As one year ends and another begins, it’s often a time for reflection. For those of us in business, it’s a time to refocus our business plans and budgets for the year ahead; And not least of all, in the budget setting process is the allocation of adadvertising spent.

It’s been interesting to see that over the last year, print media has actually ended the previous decline in circulation and has seen some small upward trend in circulation volumes. But perhaps most significantly of all was the fact that online advertising has oovertaken TV as the largest advertising

category (by spend) in Australia, now accounting for 34.2% of advertising expenditure (compared to TVwhich now has only 31.7% of the advertising market).

As consumers’ behaviours change, so must business shift its marketing focus. Those businesses operating in the media sector need to find ways to reinvent themselves or they will very quickly find that their business has about as much life left in it as that woolly mammoth they found in a Siberian ice tomb a couple of years ago!

But with the proliferation oBut with the proliferation of websites in hundreds of thousands of categories, I wonder how advertisers are going to see the online value proposition in the longer term. At present, search and directory engines online account for about 52% of online revenue whilst general display ads account for about 29% of expenditure and classifieds about 19%. When there are so many websites for consumers to use, how are advertisers to decide which sites do, and which do not provide value for money. Where the results are measurable (such as search engines and the like), the value proposition is perhaps more easilyunderstood. But with displunderstood. But with display advertising on social media sites, industry sites, media web pages and the like, it will be interesting to see how advertisers view the value proposition in the future, even with targeted advertising through the placement of cookies and data recording. The value proposition becomes even more vexed with the advent of tools like ‘AdBlocker’ that can now make websites ad free! Even worse for advertisers is the development of applications like the browser plugin called ‘Adnauseam’which clicks every blocked ad costing the advertiser even though you don’t see it!

TThere is always going to be a limit as to what business can afford to spend on advertising and marketing and that has always created competitive tensions between the various forms of media. With the proliferation of online advertising opportunities and the corresponding dilution of traffic, I can’t help but wonder if over the next couple of years we are going to see a drift back to more traditional forms of media, and a resurgence in popularity of print, TV and outdoor?

Apple Failed To Trade Mark “APP STORE”Apple has failed to trade mark “APP STORE” after the Federal Court rejected its appeal.

Apple has argued saying that when they initially filed the application for the trade mark in 2008 the term “APP STORE” wasn’t a common term used. They also said that they had been using the term before they even filed the application and that application and that was how consumers distinguished that it was an Apple service.

However, the Court has come back saying that the term “APP STORE” is really only an “expression to describe a store”where customers can use the service. The court has also said that the words were only put to use 8 days before the initial application therefore there isn’t enough evidence to suevidence to suggest that “APP STORE” in that short amount of time could be distinguished as a Apple’s Service.

Apple still has trade marks for “Appstore” and the logo “Available on the App Store”.

Telstra Found To Be Misleading Consumers

A penalty of $102,000 has been paid by Telstra Corporation Limited (Telstra) after it was issued an infringement notice by the ACCC for misleading its customers with its Iphone 6 advertisement.

Telstra placed an A3 advert in The Age newspapenewspaper back in September predominately promoting one of its Iphone 6 phone bundles for $70 p/month. However, the phone also had a monthly handset payment of $11 which equates to $81 p/month and was only disclosed in the very fine print of the ad.

ThThe ACCC found that the phone and phone plan bundle price was misrepresented in the advertisement to customers.

“Consumers should be able to understand the true cost of an advertised product so they can make informed purchasing decisionsdecisions,” ACCC Chairman Rod Sims said.

“Businesses must be careful about using attention grabbing headline prices to ensure that their advertisements do not mislead consumers about the actual price they will have to pay. This is especially the case for bundled goods and services like phonephones and plans,” Mr Sims said.

“Advertising that is clear allows consumers to make informed purchasing decisions and improves competition as it gives other businesses the opportunity to compete fairly.”

Regan, Sam & Casey attended the Rotary Club of Brisbane Airport breakfast meeting. Regan received an award for assisting with the Rotary Melbourne Cup Day event. Schultz Toomey O'Brien received a certificate of appreciation for supporting the Rotary Club Melbourne Cup Day as well.

Rotary Club of Brisbane Airport Breakfast 16th December 2014

Farmer’s Fued and a Finding of No Liability by Travis Schultz

The Supreme Court of Western Australiawas recently called upon to consider a rather novel but nonetheless significant claim by a farmer whose organically grown produce wasdevalued because of the way in which an adjoining farmer harvested their crop.

TThe scene for the dispute was Kojonup in Western Australia in an area which is about 256 kms to the south-east of Perth. The Plaintiffs, Mr and Mrs Marsh, conducted an organic farming business where they grew organic cereal crops and sheep. They held organic status certification pursuant to a prprivate contract with the National Association of Sustainable Agriculture Australia (Limited) (NASAA).

Their adjoining neighbour was also a career farmer who grew canola crops.

In recent years he had begun growing genetically of the neighbour’s crop even though they had simply farmed their property in an appropriate way?

The difficulty with the practice, however, was that on the first occasion that the canola was harvested in a particular way, wind caused the genetically modified canola seeds to be blown onto the neighbour’s organic farm and as a result, the contamination meant that the organic farmers lost their certification with NASAA and could no longer sell their produce as being “organically certified”. The Plaintiffs suffered a loss of about $85,000.00 which was the difference between what\they they would have achieved as a sale price of their crop if they had certification and what was in fact achieved.

From a legal perspective, the case was novel. The escaping canola seed caused no physical damage to the neighbour’s property but what is described as “pure economic loss”.

The Plaintiffs, Mr and Mrs Marsh, claimed damages both in negligence and in “private nuisance”.

Ultimately, Justice Martin of the Western Australian Supreme Court dismissed the claim finding that there was no duty of care owed to prevent pure economic loss through harvesting the canola as the Defendant had done, and as he had not acted unreasonably in adopting that practice and unreasonably in adopting that practice and was therefore not liable in private nuisance.

The case is significant because it tends to reinforce the principle that a landowner is generally entitled to use their land as they see fit, provided they are not acting unreasonably and that the law is reluctant to impose a duty of care on one person to avoid doing something which might cause a financial loss (without any physical loss) to a neighbour.

The outcome in many ways seems unfair to the organic farmers who were largely unable to protect themselves from their organic farming property being contaminated, but on the other hand, would it be fair to their neighbour to make them pay loss on sale oloss on sale of the neighbour’s crop even though they had simply farmed their property in an appropriate way?

As of 1st January 2015, the Government has delivered South East Queensland six family law services to asssist with separating and separted families prioritise their childrens needs.

The successful service providers are:

- Family Relationship Centre Ipswich – Relationships Australia Queensland- Children’s Contact Service Ipswich – Relationships Australia Queensland Queensland- Children’s Contact Service Logan – UnitingCare Community- Children’s Contact Service Gold Coast – Relationships Australia Queensland- Post Separation Cooperative Parenting Gold Coast – Centacare- Post Separation Cooperative Parenting Sunshine Coast – UnitingCare Community

Six New Queensland Family Law Services

Online Data Breach – Are you at risk of being hacked?It really goes to show that no matter what company you are and how much money you have to spend on security for protecting your data, hackers will still find their way in somehow.

The recent case of Sony Pictures being hacked really tells us that hackers will try everything possible to possible to gain access to the largest of companies and spill confidential information. At this stage Sony still doesn’t know who has hacked their system and the FBI are trying to find them.

There have been large amounts of personalinformation including celebrity salaries, interviews and email trails leaked to the public. Other information such as celebrity contact details, budget for films and more.

This is a very severer breach of security and is a reminder to eis a reminder to everyone to update your computer and business online security data systems and passwords.

Leaving children in the carWe often hear of children being left in cars while the parent/s duck into the shops or hop out of the car to quickly post a letter. There are also cases where the child has been left in the car with the keys and have locked themselves in leaving the parents distressed because they are unable to open the car to get to their child. To eliminate these situations from occurring:

- Always take the child with you. No matter how large or small the task is you have to do.- Never leave the keys with your child.- Never let your child play with keys or around an unattended vehicle.- Make sure all passengers are out of the car before locking it.

Sunshine Coast Office: Level 2,8 Innovation Parkway, Birtinya QLD 4575 Ph: 07 5413 8900North Lakes Office: Level 1,12 Discovery Dr, North Lakes QLD 4509 Ph: 07 3482 0500Kedron Office: Unit 1,538 Gympie Road, Kedron QLD 4031 Ph: 07 3352 2200

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