Scenario Supercharged Spirulina (SS) is a health supplements company based in Argentina, established and run by health guru, traveller and entrepreneur, Winona Wheatgrass. While starting out as a small local business, SS has now grown to become the go-to supplier for all things healthy - from acai berry powder and gut tonics, to turmeric face masks and fish oil foot rub. As a seasoned traveller with a shrewd eye for a hot deal, Winona sources the raw ingredients for the products from all over the world. SS products are well-known and supplied across South America, but Winona and her business partner, George Gingko, are eager to tap into the international market. In particular, they've heard that ever since Aussie pop star Iggy Azalea announced during an interview that she starts every day with a super-loaded green smoothie, the Australian health food market has exploded. In 2019, Winona and George made contact with an Australian company Get Your Goodies Pty Ltd (GYG), a regular supplier for Coles supermarket. Following a long, friendly Zoom call between Winona, George and GYG Director Mark Slimey - during which Winona schooled Mark on the nutritional benefits of savoury yeast flakes - it was decided that GYG would supply Coles with three SS products as a part of a product trial between 2019 - 2020. Winona made sure SS' three most popular supplements made the cut: SS Wheatgrass Wonderland, SS Evergreen Elixir and SS Goji Berry Goodness. Winona thought the branding of these products - prepared by GYG to be modified versions of the labels used by SS on South American products, including three distinctive information panels and earthy green and orange colours - would be positively received in Australia, as they would remind customers of Iggy's love of wholesome, super-charged foods. The product trial was a huge success and in early 2021, Coles told Mark Slimey that it was likely to order further products. Mark immediately called Winona and George to relay the good news. Winona was pleased, but wholly unsurprised, to hear Australians had fallen in love with SS products. When the conversation turned to securing a price, Winona was outraged at Mark's attempts to lowball her - didn't he understand the unique money-making opportunity that came with the zesty-ness of Evergreen Elixir and tangy delight of Goji Berry Goodness? Frustrated and over it, Mark Slimey thought "stuff them and their hippie South American rabbit food". Mark suddenly remembered GYG had a relationship with a domestic health food product supplier. Conscious that Coles was expecting to receive further SS orders from GYG, Mark sourced the local products and arranged for them to be called, "Wheatgrass Wonderland", "Evergreen Elixir" and "Goji Berry Goodness". Mark didn't include "SS" in the name, but - having conducted a search of the Australian register of trademarks and discovering that no one owned Supercharged Spirulina or SS name in Australia - Mark decided to include "SS" in small print on the bottom left-hand corner of the label. In late 2021, Coles confirmed orders for the three products, to continue from Nov 2021 - Nov 2022, describing the products sought as "SS Wheatgrass", "SS Evergreen" and "SS Goji Berry". The products supplied by GYG contained bright yellow and light blue packaging and had three information panels. In 2022, Sarah Salad, a long-standing SS employee (and part-time travel photographer) flew from Argentina across the world to Far North QLD, Australia, in the hope of taking a snap of the elusive Cassowary bird. While shopping for bird-watching food supplies at the local Coles, Sarah was outraged to see products being sold that were unmistakeably rip-offs of SS' three most prized products. Sarah took a photo, and WhatsApp'd to Winona straight away.

Winona is furious upon seeing the photo. She believes that GYG have capitalised on the good reputation that SS established in Australia during the product trial phase. Further, Winona is sure that GYG have tricked Coles into believing that these knockoffs are in fact, SS products.

TASK 8 - DRAFTING A CLIENT LETTER Your final task is to draft a letter of advice to our client, Winona Wheatgrass, to answer her two questions: 1. Will Get Your Goodies Pty Ltd be liable for misleading and deceptive conduct? Why/why not? 2. Will Winona be able to successfully establish the tort of 'passing off'? Why/why not? Although there may be other issues we need to discuss with our client, you only need to address the two issues listed above.