The Melbourne Technology, Media & Commercial group consists of Andrew Chalet, Sarah Caraher, Kai-Li Tan, Sarah Dolan, Michelle Dowdle, Janice Luck, Shomit Azad, Tim Lyons.
Trade promotions can be a difficult area of the law to master. Not only are there a host of regulatory requirements to comply with, but you must understand the general law of contracts, misleading and deceptive conduct and passing off. Here are some tips on running your game of skill in the most skilful way possible.
Trade promotion laws vary from state to state. Ensure that your promotions comply with all regulations for all states in which they will be available to the public. For example, if a trade promotion is valued at $5,000 or less in Victoria, it’s not necessary to submit any information about the trade promotion to the Director of Gaming and Betting unless it is requested by the Victorian Commission for Gambling Regulation. In South Australia, the threshold is $500.
You only need a trade promotion permit if the promotion is a ‘game of chance’. Chance elements include random selections or draws of the outcome of events over which you have no control. If a test of knowledge or skill is the sole determining factor, then it is a ‘game of skill’ and a trade promotion permit is not required.
If a trade promotion is conducted solely as a ‘game of skill’, then it will still be subject to trade practices and fair trading legislation. This means that the value of prizes must be described accurately and the draw must take place at the time and location shown in the terms and conditions.
Particular regulations apply to certain types of prizes, dependent on the state in which the promotion is being held. Holidays, houses and motor vehicles require particularly detailed descriptions, and such prizes may also require the promoter to pay all relevant taxes and charges. For example, if the prize is a car, all on road costs must be included.
Record keeping. In Victoria, holders of trade promotion lottery permits must keep records for three years, including the manner in which entries to the trade promotion were solicited, the names and addresses of all winners of any prize valued in excess of $1,000, and when and how the lottery was drawn.
Entry forms and promotional material should include details such as:
Place and time of draw.
The conditions of entry, if any.
Name and date of the publication in which the names of winners will be published.
Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm.
DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
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