Analysing & Evaluating Of Rights On The Restaurant's Name

Chile Con Carne restaurant located in Perth was established in 1956 and since has been operating as a Mexican food restaurant under Chile Con Carne Pty Ltd. On the other hand, Chile Con Carne of Australia Pty Ltd is another Mexican food restaurant which opened in 1981 in Central Perth and is a subsidiary of a US chain of Mexican restaurants.Issue.

Is it evident that the 2nd restaurants (1981) name of “Chile Con Carne” misleading when considered with the 1st restaurants (1976) name “Chile Con Carne”? If so, is it an infringement of any section/sections of the ACL act?

Rules

Evaluating section 18 under the ACL act, it states as a catch-all provision prohibiting a person who is in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.The 3 main aspects that should be established before there is an infringement are stated as below:

1. The word of conduct has had a wide and broad meaning and it relates to not only positive statements but also promises, inactions, predictions and puffs etc.
2. Taking the words into consideration, even though it has been given a vast meaning the activity/ trade/ commerce must somewhat have a sort of exchange or commercial character regarding the context of it and it should be connected to areas of trade or commerce such as advertising, selling of goods and services, or land.
3. Conduct should be mostly misleading or deceptive and it can be determined by an objective test as to how a common rational person would be misled or deceived.It also needs to be considered that Section 18 under the ACL act is not constrained to its usage to consumers.

It can be similarly applied for cases such as takeovers and prospectuses, misrepresentations on purchases and leases brought into action by competitors or suppliers. Also, it can be applied at times such as cases that are involved with comparative advertising or “Knocking Copy” in which incident the rivals’ product is downgraded in the form of an advertisement.

Analysis

When it comes to deciding whether a specific conduct is misleading or deceptive, or whether there is a probability that it is likely to mislead or deceive, it is eventually up to the court of law to decide and sanction.Contrariwise, the course of action in certain cases as mentioned above, and deciding whether the conduct is misleading or deceptive were set down in “Taco Company of Australia Inc. vs Taco Bell Pty Ltd (1982)” by the federal court of Australia.

By looking at the facts in respect to this case, it can be said that Chile Con Carne in Perth which was being operated by the Mexican food restaurant and which was operated under Chile Con Carne Pty Ltd since 1976 was established first and 5 years before the Chile Con Carne which is a subsidiary of the US chain of restaurants and established in 1981.

Conclusion

In conclusion, by analysing and evaluating the above mentioned facts and information, in finding in favour of the Chile Con Carne Pty Ltd company, the name “Chile Con Carne” had been established and operating as a Mexican food restaurant a considerable time before the US Chain of restaurants subsidiary Chile Con Carne of Australia Pty Ltd which had started operations in Central Perth under the same name “Chile Con Carne”.

Reference:

Taco Bell Pty Ltd V Taco Company of Australia Inc. [1981] FCA 268; 40 ALR 153