Preventing unfair competition in Australia, New Zealand and South Pacific countries: the intertwined roles of passing off and consumer protection statutes

Abstract

Abstract Australia, New Zealand and other South Pacific countries whose laws are based on English law tend to rely on a patchwork of intellectual property statutes, equitable doctrines and common law actions to prevent acts of unfair competition. The most distinctive feature of the laws of these countries is their reliance on consumer protection statutes that contain broadly worded prohibitions on parties engaging in misleading or deceptive conduct in trade or commerce, in addition to the tort of passing off, to safeguard against unfair competition. This article traces the complex relationship between passing off and consumer protection statutes in Australia, New Zealand and throughout the South Pacific. It shows how the actions have come to have a largely mixed or merged operation that seeks to balance interests in protecting trading reputation, in ensuring that consumers are not deceived, and in leaving space for competitors, especially given the limits of intellectual property statutes and other doctrines. It does so in the course of providing a detailed explanation of how Australia, New Zealand and other countries in the region give effect to their obligations under Article 10bis of the Paris Convention.