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  • #1040390
    Snow
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    thanks sixx,
    the idea that grey importing would become obsolete is a great one for retailers in Australia. It would be nice to compete on a level playing field with the US in the snow industry.
    At the moment that isn’t the case and as time changes and if Australian retailers pay a comparable wholesale price for their snow gear grey marketing will die but till then it will flourish.
    thanks again.

    #1040391
    sixx
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    Snow, post: 50178 wrote:
    but till then it will flourish.

    Absolutely! I think I said in my first post, if you can make a quick buck go for it.

    Ethics smethics.
    Factories close down everyday in Australia only to start up in China. Hundreds of Australians out of work, mortgages fail to get paid, homes get lost, shareholders buy boats and investment properties. Ethical? It’s irrelevant, it’s within the law.
    Keep within the law and do whatever you need to do to survive.

    Good luck.

    #1040392
    King
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    Keep within the law

    But this is what Snow has continually failed to reveal, that if what he is proposing or actually importing is covered by a sole import agreement between the original importer and the supplier.

    This is the crux of the discussion, and one that has never been disclosed. If there is no sole importer agreement, then this whole thread has been a waste of time (except to perhaps reveal people’s business ethics positions).

    #1040393
    PaulyT
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    King, post: 50263 wrote:
    But this is what Snow has continually failed to reveal, that if what he is proposing or actually importing is covered by a sole import agreement between the original importer and the supplier.

    This is the crux of the discussion, and one that has never been disclosed. If there is no sole importer agreement, then this whole thread has been a waste of time (except to perhaps reveal people’s business ethics positions).

    I do not agree with the above statement.

    Whether or not there is a sole imorter agreement should not deter Snow or suggest he is doing the wrong thing.

    If he can buy the goods from the company that exports them to Australia then it is them who are not honouring the agreement, should there be one.

    If he can buy the goods from a second tier wholesaler and import them and it be profitable then again it is not his responsibility to be legally bound regarding a possible agreement between the manufacturer / exporter and Australian importer.

    I suggest it is the Australian importer / distributor who needs to take up the issue with their supplier should they have a an agreemet in place.

    It is then upto the exporter / maker to decide whether or not to shut down supply to their other distribtors in order to reduce international trade.

    Just a scenario……….

    If I was to import a product that is already available here, am I legally bound to request the exporter tell me if they have a sole agreement with a company in Australia?
    And if they have, am I breaking the law by doing so, either in Australia or the country I am purchasing from?

    Short or long answer is no………

    I purchase items from OS and sell them here in Australia, as it is a global market I am offering a service to Australian consumers…..

    They can purchase here in a retail situation…..or….purchase overseas, save more than buying here in a normal retail situation but take some risk as it is a international transaction, or…
    Purchase from a Aust business who is in effect cutting out a middle man, still honours warranties, takes all the logistical risks and saves the purchaser $$$.

    In this market I see it as being about choice.

    #1040394
    Snow
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    King, post: 50263 wrote:
    But this is what Snow has continually failed to reveal, that if what he is proposing or actually importing is covered by a sole import agreement between the original importer and the supplier.

    This is the crux of the discussion, and one that has never been disclosed. If there is no sole importer agreement, then this whole thread has been a waste of time (except to perhaps reveal people’s business ethics positions).

    King,
    if you go back to my opening post it clearly states that i will be purchasing the gear from a store in the states. i will not be contacting the brand owner or the Australian importer.
    I will be purchasing the gear from the states at a markdown price, landing it here at less than i can get it wholesale here including customs duty ect ect.
    the gear will be offered for sale at a discounted rate to the Australian public. warranty issues will be dealt with by me.

    There is no sole importer agreement so please tell me why this thread has been a waste of time ( excluding the fact i have no business ethics )

    cheers snow

    #1040395
    victorng
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    King, post: 50263 wrote:
    But this is what Snow has continually failed to reveal, that if what he is proposing or actually importing is covered by a sole import agreement between the original importer and the supplier.

    This is the crux of the discussion, and one that has never been disclosed. If there is no sole importer agreement, then this whole thread has been a waste of time (except to perhaps reveal people’s business ethics positions).

    Got to disagree with you on two points, King.

    First …

    Whatever exclusivity arrangements a supplier and an ‘authorised’ distributor has is not really an issue for Snow. That’s a contractual arrangement between the supplier and their distributor. If Snow has legitimately bought goods without any restriction on resale, shouldn’t he be entitled to sell them? Certainly the distributor would have no contractual rights against Snow, although it certainly may have rights against the supplier for breaching its promise on exclusivity. But again, that’s a matter between the supplier and the distributor as parties to that deal.

    (There’s obviously other issues such as potential IP infringement but that has nothing to do with exclusivity granted under a contract.)

    Second …

    In my opinion, whether or not there is an exclusivity deal also doesn’t make a difference from a business ethics point. If there’s an ‘authorised’ distribution channel (exclusive or not), the distributors are likely to be pretty annoyed, maybe rightfully so, that they’ve taken the trouble to engage with the supplier, build up the market, etc, only to have someone come in and ride off their coat tails. Is unethical or is it simply free market competition? We’ve all obviously got different views.

    To throw something else into the mix, the Trade Practices Act prohibits exclusive dealing that has the effect of substantially lessening competition. So the law considers that there is a point at which exclusive deals are not in the public interest. Interested to hear people’s thoughts on this too.

    What a thread!

    Cheers
    Victor

    ^ This isn’t legal advice, I’m just shooting the breeze.

    #1040396
    Snow
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    why do some of my posts not make it on here ?
    pretty annoying when you type something up then it never appears. cheers snow

    #1040397
    sixx
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    victorng, post: 50326 wrote:
    Got to disagree with you on two points, King.

    First …

    Whatever exclusivity arrangements a supplier and an ‘authorised’ distributor has is not really an issue for Snow. That’s a contractual arrangement between the supplier and their distributor. If Snow has legitimately bought goods without any restriction on resale, shouldn’t he be entitled to sell them? Certainly the distributor would have no contractual rights against Snow, although it certainly may have rights against the supplier for breaching its promise on exclusivity. But again, that’s a matter between the supplier and the distributor as parties to that deal.

    (There’s obviously other issues such as potential IP infringement but that has nothing to do with exclusivity granted under a contract.)

    Second …

    In my opinion, whether or not there is an exclusivity deal also doesn’t make a difference from a business ethics point. If there’s an ‘authorised’ distribution channel (exclusive or not), the distributors are likely to be pretty annoyed, maybe rightfully so, that they’ve taken the trouble to engage with the supplier, build up the market, etc, only to have someone come in and ride off their coat tails. Is unethical or is it simply free market competition? We’ve all obviously got different views.

    To throw something else into the mix, the Trade Practices Act prohibits exclusive dealing that has the effect of substantially lessening competition. So the law considers that there is a point at which exclusive deals are not in the public interest. Interested to hear people’s thoughts on this too.

    What a thread!

    Cheers
    Victor

    ^ This isn’t legal advice, I’m just shooting the breeze.

    Great post Victor, had you posted this at the start of the thread I would’ve been sitting here shaking my head thinking this can’t possibly be right, and still do to an extent.

    You are right about everyone having personal views on this and I have to say I disagree with the rule makers on this one. I cannot believe there is no protection for exlusive licensed distributors from a business standpoint. It really is an open market, open to virtually anyone. I don’t think that’s fair but others would argue the lack of competition isn’t fair and in essence, this is pretty much why there is no protection for licensed distributors. Subjective.

    I’ve done alot of reading on the subject since this thread started and my views have changed as to what I thought the Trademark holders standpoint on the issue of parallel imports may of been. I now see that a large percentage of the time it’s a win-win situation for them irrespective of licenses in place and they won’t (as previously thought) always be enthusiastic about trying to protect their license holders by way of supply or other means.

    My personal verdict as the laws stand now for small business owners is don’t even bother paying for sole distribution rights if possible, it’s just money in the bank for a manufacturer who probably doesn’t care how you are set up to sell their goods, they just want them sold.
    A bi product of this (parallel import rules as it stands today), makes it difficult for Australian business’ to try and license their own products. Why would anyone (prospective licensees) bother? there is no protection for them … and again, I don’t think that’s fair.

    Great thread.

    #1040398
    jasonm
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    victorng, post: 50326 wrote:
    To throw something else into the mix, the Trade Practices Act prohibits exclusive dealing that has the effect of substantially lessening competition. So the law considers that there is a point at which exclusive deals are not in the public interest. Interested to hear people’s thoughts on this too.

    Victor,

    Snow was never prohibited from purchasing the product from the Australian distributor. He just wasn’t happy with the price.

    #1040399
    King
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    Victor, of course people have exclusive right on products, and this in no way reduces competition. It is naive to think so. If I import XYZ brand snow skis, that have a great reputation and I have paid money to a manufacturer for sole Australian rights to distribute in this country, I am not stopping anyone from importing or selling anyone else’s skis, just as long as it is not the ones I have entered into an agreement with.

    I f a am the Aust distributor, then yes I would be having words with the US end, but also would be strenuously defending my position here.

    In terms of ethics, this is different to legal and is more about how you treat your fellow man. So if Snow is selling these products and someone has a warranty claim, will he honor those or deflect to the rightful distributor……who may then have to wear time and expense and potential business harm if they refuse to honour warranties, and suffer consumer backlash as a result.

    I was in China last week and had the opportunity to buy all sorts of products I could have bought direct from factory, but would I? NO because I know that for everything made there are correct channels to go through.

    Can I make a 15% change to the product design and rebrand and sell under by own branding etc, sure, and with one product this is what I am looking at. The difference is it will be a different product with its own identity.

    #1040400
    Anonymous
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    Snow, post: 50331 wrote:
    why do some of my posts not make it on here ?
    pretty annoying when you type something up then it never appears. cheers snow

    Hi Snow,

    Sorry for the inconvenience. We have a banned words list that is designed to minimise the never-ending flood of spam, and for some reason it keeps picking up on your posts and sending them into the moderation queue for approval before they are published.

    Peter has asked the tech crew to look into this yesterday I think, so hopefully it won’t keep going for much longer.

    We are all keeping our eyes on this thread and will aim to minimise how long your posts are offline before being published.

    Apologies again – we do know you’re not a spammer!

    And thanks for starting such an interesting discussion.

    All the best,
    Jayne

    #1040401
    PaulyT
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    Snow, post: 50331 wrote:
    why do some of my posts not make it on here ?
    pretty annoying when you type something up then it never appears. cheers snow

    My previous post did not make it either!

    #1040402
    Snow
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    to go through the licensed distributor in Australia would be suicide for me as the wholesale prices for snow gear is roughly double here to what it is in the US.
    To me this thread is about answers and i cant seem to get anything solid.

    What i really need to hear is if i import a quantity of gear for resale knowing full well there is a licensed distributor of this brand in Australia. can i be stopped and if so where can i find a copy of the law that will stop me.
    Will customs stop the gear ?
    Will the owner of the licence threaten legal action and if so what will his case be based on.
    The problems the licence holder will face is he will not know where my gear is coming from and i cant see how he could force me to tell him.
    The legal challenge would be quite difficult i imagine.
    This practice has been going on for a long time so just because im discussing it here doest mean its something new.
    Ebay is full of parallel imported snow gear.

    #1040403
    victorng
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    Power Protect, post: 50338 wrote:
    Victor,

    Snow was never prohibited from purchasing the product from the Australian distributor. He just wasn’t happy with the price.

    Yes, I realise that. I was addressing the sole / exclusive distributor issue that King raised (i.e. the relationship between supplier and distributor).

    King, post: 50340 wrote:
    Victor, of course people have exclusive right on products, and this in no way reduces competition. It is naive to think so. If I import XYZ brand snow skis, that have a great reputation and I have paid money to a manufacturer for sole Australian rights to distribute in this country, I am not stopping anyone from importing or selling anyone else’s skis, just as long as it is not the ones I have entered into an agreement with.

    That’s why the exclusive dealing prohibition in the TPA is subject to the competition test (i.e. does it, or is it likely to, have a substantial effect on competition). It’s a pretty complex question that usually involves competing expert analysis of markets etc by economists. Just as it would be naive to think that all exclusive dealing affects competition, it would be just as naive to think that exclusive dealing never ever reduces competition.

    King, post: 50340 wrote:
    In terms of ethics, this is different to legal and is more about how you treat your fellow man. So if Snow is selling these products and someone has a warranty claim, will he honor those or deflect to the rightful distributor……who may then have to wear time and expense and potential business harm if they refuse to honour warranties, and suffer consumer backlash as a result.

    I see warranty concerns pretty low down on the ethics list. Snow has to provide a warranty. That’s what the law says. IMO the real ethical issue (for those who subscribe to it) is that of grey marketers riding off the coat tails of distributors who’ve built up the market and done the hard yards to create a market that is capable of being ‘greyed’.

    Snow, post: 50368 wrote:
    To me this thread is about answers and i cant seem to get anything solid.

    That’s because you’re asking legal questions. You need to see a good lawyer if you want something solid.

    Snow, post: 50368 wrote:
    What i really need to hear is if i import a quantity of gear for resale knowing full well there is a licensed distributor of this brand in Australia. can i be stopped and if so where can i find a copy of the law that will stop me.
    Will customs stop the gear ?
    Will the owner of the licence threaten legal action and if so what will his case be based on.

    The answer ‘it depends’ comes to mind. Trade mark infringement is a possibility. If a trade mark owner has lodged a notice of objection with Customs, Customs can stop infringing imports (this is usually used to stop counterfeit goods though) to allow the TM owner to issue court proceedings.

    Snow, post: 50368 wrote:
    The problems the licence holder will face is he will not know where my gear is coming from and i cant see how he could force me to tell him.

    He’ll ask you. And if you refuse to answer, this may have consequences down the track if court proceedings are issued (particularly in terms of costs orders). And if the licence holder is serious and issues, he can get the answer through the discovery process.

    ^ This isn’t legal advice, I’m just shooting the breeze.

    #1040404
    Anonymous
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    PaulyT, post: 50344 wrote:
    My previous post did not make it either!

    Hi Pauly,

    Apologies to you too for this bug we seem to have in our system (as well as to anyone else affected). I don’t see any posts from you awaiting approval in the system so hope they are all online as of now.

    We will get this sorted out as quickly as we can.

    Sorry :(
    Jayne

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