Remedies and Penalties

Question: Explain who may take legal action and what remedies and penalties could be applied. Cases and statutes should be used. Answer: Introduction: The business organizations operate with the complex regulatory and legal framework. The sources range anywhere from the specified statutes and above all, it is governed by the common law. The basic concept of the common law is that it becomes operational once the matter gets decided in the court. The compliance to the organization is somewhat an assurance that the business holder seeks from the arrangements that it meets the entire legal, regulatory requirements mostly applied to the ongoing business activities (Betke et al. 2013). The essential regulators acting in the compliance mainly consists of the government regulators particularly the Australian Securities and Investment Commission (ASIC) and the Australian Competition and Consumer Commission (Farrar and Hiscock 2015). The compliance usually acts as the regulatory body enforced by the Governmental policies and the industrial associations thus termed as the regulatory compliance (Sadiq and Governatori 2015). Discussion: For a business set up, it is quite important to follow certain rules that go in compliance with the ongoing business set up rules. As it is observed that the compliance acts as the regulatory compliance, it is understood that it regulates some factors in the business, and since it has the legal enforceability, so the entity are bound to follow the regulations as described in the statutes. In the given situation, the party intends to run a business of the seafood restaurant based in Sydney, and they wish to name it as Great Catch.' So, upon starting a business, the members are required to be aware of certain rules related to the business and needs to comply them so as to maintain the ongoing business without the legal obligations. The primary rules of the business follow the type of the business and the means to continue. The meaning of the statement is whether the business will be a proprietary business or the limited business with shares. After the decision of the type and nature of business gets decided then comes the concern of the place where the party intends to carry on with the business. The decision of the outlet involves the discussion, whether the party will buy any property or will take a lease. Hence, such discussion needs to take reference from the property law based on that place. So, it is important to note what the property law explains and what are the limitations applied with compliance of the application of the rules. It is important to note whether the property is a real property that attaches the land or the personal property that includes the leases with the chosen possession and action. The next concern comes whether the property chosen has the ownership or the possession. The possession usually occurs for the leased property where the person holds some exclusive control when the real claim is held back by the actual owner (Bird 2016). Hence, the leased party are liable to take care of the property without the actual claim over it and is liable to operate with the claim without any actual right over the property. Armory v Delamirie and Ranger v Giffin is the matter where the court ordered that any possession found to be not applicable to the operating purpose must be returned to the actual owner of the possession. The party to the business must be well aware of the fact to distinguish between the leased and real property. For the business ongoing of a restaurant, it is likely that they will take a lease of the property hence they must license the period of the usage. The lease is the contract that involves the actual owner and the interested party as the subject of the agreement, where it is decided that the tenant will use the premises for a certain period (Davis 2012). The obligation comes with an option to extend the lease as necessary by the tenant. The license to the premises is right for the tenant to use the premises for a defined purpose as in the agreement. Once the property chosen decision gets over, it is the concern for the business holder to keep a signatory level of their business so that there shall be no illegal claim upon such by a party. The business must have a specified protection that seems to be fit for it. The intellectual property is governed by four statutes: The Copyright Act 1968 The Designs Act 2003 The Patents Act 1990 The Trade Marks Act 1995 The party must be aware of the fact of what it means to the infringement of the copyright and how does it affect the trademark of the business (Davison et al. 2016). The trademark that is likely to affect the business purpose of the restaurant is that the copying of the name and even following a same under the name which might spoil the goodwill of the existing business. Therefore, it is advisable to take the reference to compliance from the ASIC for the registration of their names of activities so that no other business can get the license under the same name, Targets Pty Ltd v Target Australia Pty Ltd (Austlii.edu.au 2016). The concern with the sale of goods as well as the consumer protection is a concern compliance with the business of a restaurant. Since the law of sale of goods is regulated by the consumer laws of Australia. The sale of goods comes with some implied terms and is maintained under the good faith to the customers, Grant v Australian Knitting Mills. Lastly, the concern must be with the consumer protection laws so that the business goes with the fair trading policies with compliance to the Trade Practises Act. The business must go with the good conduct and no customer to be dealt under influence, Commercial Bank v Amadio (legislation.vic.gov.au 2016). Conclusion: So, throughout the business planning, we have seen that the importance of the effective compliance planning is a necessity to continue with the business. The system of conformity acts as an integral part of the business on the good governance of the planning. The basic requirement is that the ongoing business rules must comply with legal obligations. Issue: Do Manny and Bella violate the intellectual property rights of MB oven or the Tuscan XX by referring it to another name? Does the Tuscan manager violate the rule under the sale of goods act laws by assuring them that the oven will fulfill the criteria of the requirement, which in real is not happening? What remedies are available to Manny and Bella for the infringement of the fair trading regulations if they sue against the Tuscan XX under Consumer Protection Law? What compensation must MB oven get from Manny and Bella if they sue them for the wrongful use of the name which might affect the good faith under the property law? Rules: The following rules to apply for the situational issues rose for the given situation: Issue 1: For the issue raised here, the rules from the Intellectual Property rights are applicable here. The fact emphasized here explains the defendants' primary purpose of creating the breach of the statutes and how much they intend to misuse it for their personal benefits, Milpurrurru v Indofurn (Reynolds et al. 2012). The rules under the infringement of the intellectual property will also apply here since there was no record of the transfer of the rights to use the name in whole or part manners, Wilson v Weiss Art Pty. Issue 2: For the situation raised the rules under the sale of goods law will be applied here. The sale of the goods usually gets compliance with the consumer laws where the seller sells the consumers goods under the good faith. The sellers are liable for some implied terms while selling the product to the consumers, David Jones Ltd v Willis. Issue 3: The remedies available to Manny and Bella will have the compliance under the consumer protection law. The rules of Sec 18, which explains misleading and deceptive conduct, duplicating section 52 of the act. Sec 20- Unconscionable conduct explaining the undue influence and unfairness, Commercial Bank v Amadio.Falling under the rules of false and misleading representations, Rules for the remedy, penalty and enforcement containing the injunctions and the damages. Issue 4: In the situation raised here, the MB oven is liable to get the damages caused top their good will due to the wrongful use of the name since the MB oven is their title ownership. The hold of the position claims that they are the true owner and that they must have the sole ownership upon the possession, Armory v Delamirie and Ranger v Giffin .The personal property and the security act is one of the act compliance with the property act (Carruthers et al. 2012). Hence, the rules for the violation for the security of property rights find the relevancy here. Application: Issue 1: In this situation, it is found that Manny and Bella wish to advertise the name of the pizza oven as the MB oven, while in real it was Tuscan XX. It is a clear situation of the infringement of the intellectual property rights since Manny and Bella misled the name of the company for their benefit. They even acted in such manner that violated the confidentiality of the MB oven, after that spoiling the good name and proving it as incapable. So, the situation makes an infringement of the intellectual property rights since there was no transfer of the permission made regarding the use of the name. Issue 2: In this situation, it is observed that the consumer (here Manny and Bella) are misguided. There was a breach of the warranty from the part of the Tuscan XX oven Pty. Ltd. While there is a breach of the terms of the warranty then the good faith is hampered and causing the breach of the implied terms in the good sold to the consumer. Issue 3: In this issue, it is observed that there is a violation of the rules under the consumer protection laws. Hence, the rules under the remedies to the breach of the consumer protection laws will be applicable for Tuscan XX since they have misled the consumer. They even made false assurance of the product and some faulty advertisement. So, they are liable to get the compensation for the damage caused to their good faith and the loss of the business. Issue 4: MB oven if sues Manny and Bella, then they will fall under the liability of the payment of damages under the property rules to the company. It is found that they have breached the security of the property whose sole ownership is vested with the MB oven. Also, the goodwill maintained by the company is hampered by the act of Manny and Bella, because when there is an observance of the incompetency of the pizza making the device, then the name of MB oven gets exposed. The exposure of the name will further create a loss in the business (Galloway 2015). Conclusion: Issue 1: The situation raised here explains about the violation of the intellectual property rights for wrongfully using the name without the prior transfer or permission of the same. The act caused misleading towards the good faith of the business carried on by the MB oven and thus is likely to cause some loss in the business. Issue 2: In this situation, the Tuscan managers have misled the party in concern by giving false assurance to the capacity of the pizza maker device. The act created a loss in the business of Manny and Bella. Issue 3: Many and Bella is liable to get the damages under the consumer protection act since the good faith of theirs was hampered by Tuscan entity. There was an observance of the mental distress due to the incompetency of the pizza maker that is causing them a huge loss. Issue 4: MB oven is liable to get the compensation under the intellectual property law since the privacy and security were hampered from the part of Manny and Bella since they used it wrongfully to their advantage. Reference: Austlii.edu.au. 2016. COPYRIGHT ACT 1968. [online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/ [Accessed 7 Jun. 2016]. Betke, H., Kittel, K. and Sackmann, S., 2013, March. Modeling Controls for Compliance--An Analysis of Business Process Modeling Languages. InAdvanced Information Networking and Applications Workshops (WAINA), 2013 27th International Conference on(pp. 866-871). IEEE. Bird, H.L., Gilligan, G., Godwin, A., Hedges, J. and Ramsay, I., 2016. An Empirical Analysis of the Use of Enforceable Undertakings by the Australian Securities and Investments Commission between 1 July 1998 and 31 December 2015.CIFR Paper, (106). Bouchoux, D., 2012.Intellectual property: The law of trademarks, copyrights, patents, and trade secrets. Cengage Learning. Carruthers, P., Skead, N. and Galloway, K., 2012. Teaching property law in Australia in the twenty-first century: What we do now, what should we do in the future.Australian Property Law Journal,21(1), pp.57-76. Carruthers, P., Skead, N. and Galloway, K., 2012. Teaching property law in Australia in the twenty-first century: What we do now, what should we do in the future.Australian Property Law Journal,21(1), pp.57-76. Davis, J., 2012.Intellectual Property Law Core Text. Oxford university press. Davison, M., Monotti, A. and Wiseman, L., 2016.Australian intellectual property law. Cambridge University Press. Farrar, J. and Hiscock, M., 2015. Australia's Trade, Investment and Security in the Asian Century. In V.I. Lo ed.,,Australia's Trade, Investment and Security in the Asian Century(pp. xxiii-xxiv). Galloway, K., 2015. Sustainability in the Real Property Law Curriculum: Why and how.Journal of Learning Design,8(2), pp.31-42. Hoffman, W.M., Frederick, R.E. and Schwartz, M.S. eds., 2014.Business ethics: Readings and cases in corporate morality. John Wiley Sons. legislation.vic.gov.au. 2016. Australian Consumer Law and Fair Trading Act 2012. [online] Available at: https://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/a7a06c0b33b7f723ca2579f80018c9f2/$FILE/12-021abookmarked.pdf [Accessed 7 Jun. 2016]. Reynolds, R., Stoianoff, N., Adrian, A. and Roy, A., 2012.Intellectual property: text and essential cases. Federation Press. Sadiq, S. and Governatori, G., 2015. Managing regulatory compliance in business processes. InHandbook on Business Process Management 2(pp. 265-288). Springer Berlin Heidelberg. Stone, B., 2014. Contracts for the International Sale of Goods: The Convention and the Code.Mich. St. Int'l L. Rev.,23, p.753. Tripodi, L., 2015.Towards a New CISG: The Prospective Convention on the International Sale of Goods and Services. BRILL.