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This unit is designed to introduce students to some of the most important areas of the law affecting the marketing of goods and services and to place familiar marketing concepts in an appropriate legal context. The unit also seeks to promote an understanding of the arguments for and against government regulatory intervention in Australian markets for goods and services. These objectives will be achieved by tracing the development of a marketing enterprise from product development and protection, through pricing and promotion decisions, to distribution, sales and after-sales care arrangements. In so doing the unit will deal with the following important legal topics:
the nature and role of “intellectual property rights” in or over goods or services and the extent to which those rights can be used to prevent one trader from copying the goods and services of another trader or otherwise unfairly taking advantage of the first trader’s business reputation or goodwill;
the “consumer protection” provisions of Part 3-2 of the Australian Consumer Law (the ‘ACL’) (Schedule 2 to the Competition and Consumer Act 2010 (Cth) – the “CCA”) and in particular the legal rights and duties which this legislation imposes on product and service creators and distributors in relation to the manufacture, promotion, distribution and sale of goods and services to consumers;
the common law and statutory provisions designed to protect both consumers and small business operators against “unconscionable conduct” (ACL Part 2-2);
“competition law and policy” and especially the legal control of anti-competitive market behaviour including collusive relationships between competitors, misuse of market power, vertical and horizontal price fixing and other proscribed conduct (CCA Part IV);
“legal remedies and dispute resolution processes” available to competitors, consumers and regulatory authorities both at common law and under the CCA; and
“miscellaneous matters” relating to product packaging and labelling, the common law rules preventing unreasonable contractual provisions in restraint of trade, the legal regulation of unfair, misleading or deceptive selling and distribution techniques and the impact on Marketing Law of electronic commerce.
At the conclusion of this unit students should be able to:
(1) demonstrate a basic understanding of the principles of law applicable to each stage in the ‘marketing cycle’ and of the arguments for and against government regulatory intervention in Australian markets for goods and services, especially as regards the need for and proper scope of provisions designed to promote and protect the interests of consumers;
(2) critically analyse the factual matrix of a ‘marketing law’ dispute and state the legal issues that arise, cite the legal principles that are needed to resolve the legal issues as well as the statutory and case authorities that are the source of those principles; and
(4) apply those legal principles to the facts of the case and reach a reasoned conclusion as to the appropriate legal outcome of the dispute.