A question we often receive from sellers of parts, suppliers of parts and repairers is, “What do I need to tell my customer about the part I am selling, fitting or repairing?”
If you sell spare parts or repair a customer’s vehicle with spare parts, you must be careful when describing the spare part as either ‘aftermarket’ or ‘OEM’, genuine, non-genuine or parallel.
For example, if a seller describes a part as a ‘Toyota Oil Filter’ when it is actually an aftermarket part and not made by Toyota, this could land you in trouble with the OEM. According to the courts, more specific language must be used to accurately describe the part such as, “suitable for Toyota”.
By not doing so, you run the risk of engaging in trademark infringement, under the Trade Marks Act 1995 (Cth) (Trade Marks Act), or being found guilty of misleading conduct under Australian Consumer Law (ACL) (S18).
The next time you or your employees are selling a part, or if you are writing on an invoice to a customer what parts have been used in a repair, be sure that they accurately describe the part as either ‘aftermarket’ or ‘OEM’, genuine, non-genuine or parallel.
Section 18 of ACL prohibits any business from engaging in conduct that misleads or deceives, or is likely to do so.Section 28 of ACL also prohibits false or misleading representations made in connections with the supply of goods and services. Therefore, all sellers and suppliers of parts must be accurate in their description.
There is also a Repair Defence that provides protection against infringement of the sale of replica parts provided that the parts are used for the purpose of repair. In this case, it all comes down to the onus on the seller to demonstrate that they knew that the part(s) were going to be used for the purposes of repair or not.
You should have policies and procedures governing the sale of spare parts in order to rely on the Repair Defence.
If you have any questions or concerns in relation to your obligations under ACL, or to protect against any liabilities, click here to contact our WR team.
You can also contact our Industry Engagement Specialist, Paul Back, by clicking here.