E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW
ISSN 1321-8247
Volume 4 Number 3 (September 1997)
Copyright E Law and/or authors
File: blak43.txt
ftp://www.murdoch.edu.au/pub/elaw/issues/v4n3/blak43.txt
http://www.murdoch.edu.au/elaw/issues/v4n3/blak43.html
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A Review of B R Clarke and B J Sweeney, Marketing and the Law

Michael Blakeney
Professor of Law, Murdoch University

Butterworths, Sydney 1997, 600 pages, ISBN 0 409 311227. $75.00

  1. This book is said to be designed "primarily for business persons and
     business students who require a text that enables them to quickly
     ascertain the legal principles applicable to the marketing of goods
     and services". It achieves this aim extremely well with the assistance
     of charts that summarise the key provisions of relevant statutes and
     flow charts that indicate the procedural aspects and transactional
     process of both legislation and regulatory agencies. Finally, the book
     contains a multitude of case examples that are summarised in an
     abbreviated head-note form.

  2. The authors declare that "’Marketing Law’ is merely a shorthand way of
     referring to those legal rules, remedies and sanctions that are likely
     to have the greatest impact on marketing decisions" (p.1). On this
     basis the authors select as their areas of study: intellectual
     property law, packaging and labelling law, product liability and
     advertising law, and restrictive trade practices law. The book is
     silent on the area of law, which is most likely to have the greatest
     impact upon marketing decisions, namely, revenue law. It is difficult
     to accept that business persons concerned with marketing have much
     interest in intellectual property law, beyond trade marks protection,
     and that their interest in restrictive trade practices extends much
     beyond the prohibitions of price fixing and exclusive dealing.

  3. For the academic seeking a teaching resource for a marketing law
     course, this text would have to be supplemented with a basic business
     law resource in which the essentials of contracts, torts and business
     associations law and the law of sale will have been covered. The areas
     of law covered by the authors are, indeed all part of the legal
     environment in which business decisions are made, but the book lacks a
     compelling intellectual structure. For example, the authors are
     largely silent on the consumer protection context in which marketing
     decisions are taken. All of the areas of law covered by the authors
     have a consumerist context. Thus in ascertaining whether trade marks
     are deceptively similar in the meaning of the Trade Marks Act 1995 or
     whether conduct is deceptive within the meaning of s.52 of the Trade
     Practices Act 1974, a court will have to attribute a level of expected
     consumer sophistication to the relevant target audience which is taken
     as the touchstone against which deception is measured. The prohibition
     of restrictive trade practices was undertaken as a means of
     eliminating activities and conducts which were ultimately detrimental
     to consumers. The regulation of packaging and labelling law and
     advertising law are all ways in which the legislature has regulated
     the creation of consumer expectations. Finally, the subject of product
     liability, which is covered by the authors, involves a consumerist
     amplification of relevant common law principles that apply to consumer
     transactions. The book contains no chapter on consumer protection and
     that subject is not mentioned in an otherwise comprehensive index.

  4. However, the subjects that are covered in this book are discussed in a
     clear and comprehensive fashion. The seven intellectual property
     chapters, which commence the book, provide a very useful introduction
     to this subject for marketing students. An area that could profitably
     have been included is the impact of the Internet on marketing. There
     is currently under way a lively debate on the appropriation of domain
     names on the Internet as a species of passing off or trade mark
     infringement. The chapter on packaging and labelling introduces
     readers to the plethora of State and Federal legislation in this area.
     Another area worthy of study in a subsequent edition is the
     legislation governing the packaging and labelling of goods destined
     for international trade, as well as goods which are imported.

  5. A brave attempt is made to survey product liability law, commencing
     with an introduction to the basic sale of goods principles as they are
     amplified by Part VA of the Trade Practices Act.

  6. The chapters on Advertising Law and Packaging and Selling and
     Promotional Techniques, update S. Barnes and M. Blakeney, Advertising
     Regulation, (Sydney: Law Book Co., 1986), the previous authority in
     this field.

  7. The concluding seven chapters on restrictive trade practices law, also
     provide a very useful introduction to that subject, but one must
     question whether the target reading audience really needs chapters on
     merger regulation and monopolisation, in place of some coverage, say,
     of sales tax and the law of agency.

  8. However, it is true to say that teaching in this area is an
     idiosyncratic business. With the pressure on teaching institutions to
     abbreviate courses and to provide service teaching in alien
     disciplines, a text such as this provides a useful nucleus for a
     marketing law course. I will be using this as an introductory text in
     a course taught by me on intellectual property aspects of advertising
     and marketing.