Case: McDonald's Systems of Australia Pty Ltd v McWilliams Wines Pty Ltd (1979) 28 ALR 236
Outcome: considered
53 provides as follows: False or misleading representations A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services: (a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; (aa) falsely represent that services are of a particular standard, quality, value or grade; (b) falsely represent that goods are new; (bb) falsely represent that a particular person has agreed to acquire 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; (e) make a false or misleading representation with respect to the price of goods or services; (ea) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; (eb) make a false or misleading representation concerning the place of origin of goods; (f) make a false or misleading representation concerning the need for any goods or services; or (g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. Reliance in the present proceeding is placed upon s 53(a) , (aa), (c) and (d). There is no reason to give these provisions anything other than their normal meaning. In McDonald's Systems of Australia Pty Ltd v McWilliams Wines Pty Ltd (1979) 28 ALR 236 at 247, Franki J considered the meaning of the terms " sponsorship " and " approval ". His Honour there concluded as to the meaning of these two terms as follows: In Weitmann v Katies Ltd (1977) 29 FLR 336 at 344, I had occasion to consider the meaning of the word "sponsorship" in s 53(c) and I said: "The word 'sponsorship' in connection with trade marks or trade names seems to envisage something more along the lines of a certification mark." I see no reason to change this view and I consider that the word "sponsorship" in s 53(c) should be construed in a way appropriate to the construction of such a word in a section creating a criminal offence. ... The next question is whether there was a representation by the respondent that its wine had "approval" which it did not have. ... The Oxford Dictionary defines "approval" as "the action of approving; sanctioning, approbation". The most appropriate meanings of "approve" in the Oxford Dictionary are, in my opinion, "to confirm authoritatively; to sanction; to pronounce to be good; commend". ... It has, however, been questioned whether these definitions place " too narrow a meaning upon these terms, attached as they are to the verb 'represent'... ": 10 th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 at 325 per Gummow J. Nor should any constrained meaning be placed upon the term " affiliation " as used in s 53(d).