13 September 2019, marks the end of the 6-month grace period for IP rights holders to ensure that any existing agreements and contracts are compliant with the recent changes to the Australian Competition and Consumer Act (Cth) 2010 (the CCA).
The purpose of the CCA is to promote fair trading and a competitive market by prohibiting anti-competitive behaviour such as cartel conduct and exclusive dealing.
Until earlier this year there was an IP exemption in section 51(3) of the CCA that permitted IP holders to engage in behaviour that would have otherwise been anti-competitive in nature. This included having conditions in an agreement for territorial restrictions and price and quality requirements, even though such restrictions would be considered anti-competitive.
The IP exemption was repealed earlier this year and IP owners are now no longer exempt from conduct that could be interpreted as anti-competitive. Australian businesses were granted a six-month grace period until 13 September 2019 to ensure that their existing contracts and agreements are compliant with the CCA.
The grace period is fast approaching. We strongly recommend that all businesses that have not had their existing and future IP agreements reviewed in line with the anti-competitive conduct prohibitions in the CCA, do so now.