The TPA 1974 (s52 and s53). In the first place, it is importantly to present the content of those two sections from the TPA as a following: Section 52 of the TPA 1974 provides: “A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive”. Respectively, section 53(c) and (d) of the TPA 1974 provide: “A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(c) Represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have. (d) Represent that the corporation has a sponsorship approval or affiliation it does not have”. In order to explain those two provisions, it is better to look at the case law. Wickham v Associated Pool Builders Pty Ltd is one of the significant sport cases that related to s52 and s53 (c), (d). In that case, Miss Tracey Wickham was a plaintiff and Associated Pool Builders (APB) was a defendant.
The plaintiff had a valuable personality and considered as a celebrity because she won medals in international swimming competitions. Thus, the defendant signed a promotional agreement with her to market its products. The agreement gave the APB an authorization to use the name and photograph of Miss Wickham in the promotion of swimming pools marketed by APB. In return, Miss Wickham would be paid a royalty for every swimming pool sold and she would make herself available for personal appearances to promote the swimming pools.
The agreement was meant to be terminated after three years by either parties or any time by the plaintiff for reason of non payment of her fees. The agreement was applied for a period of time, and through that time the plaintiff argued that she did not consent to the defendant to carrying out business under the names (Tracey Wickham) and (Tracey Wickham Pools). Further, she claimed that this conduct constituted a misrepresentation for the consumers to believe that she owned such business.
Consequently, the agreement was terminated but the APB continued to use the name (Tracey Wickham) in its business. Thus, an action was taken by Miss Wickham against the defendant alleged that the use of the name by the APB was misleading or deceptive conduct which breached s52 and s53(c), (d) of the TPA and also amounted to passing off. The defendant disagreed with the above argument and argued that it was allowed to use the name (Tracey Wickham) in their business.
Also, it claimed that even the termination of the agreement, such name was sold for it for ever as a result of the terminated agreement. The court held that defendant was in breach of s52 and s53(c) of TPA for the following reasons: 1. The agreement between the parties was a license agreement for the promotion and endorsement of the defendant’s products. It permits the defendant to use the name (Tracey Wickham) throughout the agreement period, but it did not give the respondent such permit for ever.