It is possible to legally copy an idea behind another
advertisement, but you can't substantially reproduce the other
A recent Federal Court decision is a good reminder to marketers
that they need to be careful when seeking to express the same
concepts or ideas found in someone else's advertising. Although
it is possible to copy an idea behind another advertisement, simply
changing a few words will not be enough - you need to come up with
your own expression of the relevant idea.
Two optical retailers, two ads offering free replacement
Budget Eyewear Australia Pty Ltd and Specsavers Pty Ltd are
competitors. Budget Eyewear, which is part of the same corporate
group as the company which operates the OPSM chain, operates the
chain of Budget Eyewear optical retail stores, while Specsavers
operates the chain of Specsavers optical retail stores.
On 1 May 2010 Budget Eyewear launched its "See it like it
is" advertising campaign which offered to replace broken
Specsavers glasses with Budget Eyewear prescription glasses. The
campaign included print advertisements and a radio script, and
included phrases such as:
"If your Specsavers glasses
break (and we're not saying they will) we'll replace them
with a pair of ours for free".
"If your Specsavers glasses
break – and we're not saying they will
– simply bring them into Budget Eyewear. We'll
replace them with a pair from our own range – free of
"If your glasses aren't
all they're cracked up to be, don't worry,
we'll come to the rescue. For the next two weeks... you can
take any Specsavers glasses to your nearest participating Budget
Eyewear store and we'll replace them with a pair from our
range – free of charge".
Specsavers launched its own "fight back" campaign on
13 May 2010. Its print advertisement included the following phrases
(the bold words are the same as the equivalent sentences in the
"If your OPSM
glasses happen to break, and we're
not saying they're going to,
we'll exchange them with a pair
from Specsavers with a 2 year guarantee, for
prescription glasses aren't what you hoped
for, don't stress –
we're here to help. From
Thursday 13th May to Thursday 27th May, take any broken OPSM
glasses to your nearest Specsavers store
and we'll give you a pair from our
range – for free".
Budget Eyewear sued Specsavers
Budget Eyewear commenced Federal Court proceedings on 14 May
2010, seeking an urgent injunction to stop the use and publication
of Specsavers' advertising campaign. It alleged that the
Specsavers print advertisement infringed the copyright in two
Budget Eyewear print advertisements and a radio script.
Specsavers admitted that it copied Budget Eyewear's
advertising for its own advertisement. Specsavers had directed its
advertising agency to utilise Budget Eyewear's campaign to
create Specsavers' advertisement. However, it copied the idea
of the campaign, not the exact wording. As a general rule,
copyright protects the expression of an idea, not
the idea itself.
Budget Eyewear submitted that Specsavers had attempted to avoid
copyright infringement by simply replacing words from Budget
Eyewear's advertisements with synonyms so that the exact words
were not used. It argued that these substitutions were only minor
departures from the original wording used by Budget Eyewear and
were insufficient to avoid a finding of copyright infringement,
particularly since it was clear and accepted that Specsavers had
used the text of Budget Eyewear's advertisements to develop its
Court finds prima facie copyright infringement in glasses
The Federal Court granted an injunction which stopped Specsavers
from further publishing its advertisement (pending the final trial
in this matter).
Although the Specsavers advertisement was not an exact copy of
the Budget Eyewear advertisements, it still adopted the same
expression of the ideas in Budget Eyewear's advertisement where
various other means could have been used to express the
The Court accepted Budget Eyewear's contention that
"Specsavers could have copied the idea but exercised its own
imagination to express that novel concept in new and different
language rather than... 'using a thesaurus' to substitute a
Having decided that the Specsavers advertisement took a
substantial part of the Budget Eyewear advertisements, the Court
was satisfied that there was a strong prima facie case of copyright
infringement. The Court also noted that its injunction does not
preclude Specsavers from creating its own expression of the
concept, which, broadly speaking, could be described as the
replacement of glasses on a certain basis.
This matter will now proceed to a final hearing unless it is
settled out of court by Budget Eyewear and Specsavers.
Lessons to be learnt
This case makes it clear that it is possible to legally copy an
idea behind another advertisement - including in any "fight
back" strategy against a comparative advertisement or other
form of direct attack from a competitor. However, it is crucial
that, in doing so, the new advertisement does not substantially
reproduce the other advertisement.
To avoid a "substantial reproduction", businesses
should come up with their own expression of the relevant idea
rather than, for example, simply replacing words with synonyms.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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