Friday, 31 May 2019

Final wash up?

Appeal in laundry detergent cartel case unsuccessful No surprises here - the ACCC's evidence was very weak to begin with and compounded by their very strange decision not to cross-examine Professor George Hay, the other side's economic expert, at trial:
401. The Commission submitted, in effect, that the Court should prefer the opinions of Professor Williams. It expressly or implicitly criticised aspects of Professor Hay’s analysis and his opinions. In those circumstances it was somewhat unusual, if not unhelpful, that the Commission elected not to cross-examine Professor Hay.

Time for the ACCC to walk away from this one and forget about an appeal to the High Court.

Big penalty on the way

Kogan in Court for alleged false or misleading discount advertisements If the ACCC's allegations about Kogan, as set out in the ACCC's Media Release, are made out in Court, Kogan could be up for a sizeable penalty. I see the spectre of either a three times the benefit or 10% of annual turnover penalty being imposed.

Overstepping the mark

Court dismisses ACCC proceedings opposing rail freight consolidation I think the Court overstepped the mark in this case. A Court should not simply accept behavioural undertakings from a party in order to allow a merger through, particularly one which the Court acknowledged was going to substantially lessen competition. There is a process of putting the specific details of any undertaking, behavioural or structural, to the market for comment to determine whether the undertaking will work in practice. That didn't happen here. On this point alone, I think the ACCC's prospects on appeal are mighty strong.

Deckers Outdoor Corporation v Australian Leather Pty Ltd

Deckers Lands $450,000 Victory Against "Tiny" Rival in "Ugg" Boots Case Good article but not entirely correct - another outstanding issue is whether the original owner of the ugg "trademark" (Brian Smith) improperly used the registered trademark symbol on his products for almost 10 years prior to obtaining the trademark registration. If we succeed on that issue, Deckers may lose the ability to enforce its trademark.

Deckers Outdoor Corporation v Australian Leather Pty Ltd

Australian ugg boots lose trademark fight against US giant We went down in the jury part of our trial in the US. The jury ordered statutory damages of $US450,000 for $US2000 worth of ugg boots sold in the US! Still waiting for the judge's decision in relation to our application to have Decker's US Ugg trademark declared unenforceable.

Gutsy call

Competition regulator blocks Vodafone and TPG Telecom merger

Gutsy call by the ACCC - let's see if they are prepared for the inevitable litigation!

I can't see that the ACCC are going to have many industry witnesses to put before the court to say that the TPG - Vodafone merger is going to substantially lessen competition. Neither Telstra or Optus are likely to be fronting up as the ACCC's star witnesses.

Maybe the ACCC is relying on some smoking gun documents from TPG and Vodafone which proves that the merger parties believed that the merger will substantially  lessen competition. Having said that, it would be pretty unusual for companies to write that sort of stuff down, but you never know.

Deckers Outdoor Corporation v Australian Leather Pty Ltd

Our trial in the ugg boot case started on 5 May 2019 in the US District Court in Chicago.

ABC story about the case\

Australian Ugg boot manufacturer in legal fight with American footwear company