There's a fine line between acceptable advertising
BS, or puffery, and misleading or deceptive conduct. Often you only
find out that you've crossed the line when the ACCC rings or
the court proceedings are served.
Specsavers recently challenged ads from their competitors,
Luxottica (OPSM). These guys must hate each other
if you judge by the number of times they've been in court.
The ads in question were for 'Accufit', OPSM's
system for helping customers choose prescription glasses. Of most
interest were claims that Accufit gave 'better' results
(Better Claims), and claims that "once upon a
time, fitting your prescription lenses involved a ruler, a felt pen
and a steady hand" (Ruler Claims). Here's
Specsavers said these were comparative claims, inferring that
OPSM's frames and lenses were better than those of their
competitors and that competitors actually do use rulers and pens to
The court didn't agree. It found that ordinary people
wouldn't take the Better Claims to relate to the quality of
OPSM's frames or lenses, but rather to the fitting services.
And the Ruler Claims referred to traditional methods rather than
those of current competitors, underscored by the use of 'once
upon a time'.
There are a couple of things we can learn from the case.
If you compare your products to someone else's products, or
advertise a measurable quality or consequence, you need to be able
to back it up. But a degree of puffery is fine.
Think carefully about any strategy that involves suing your
competitors for their advertising. You want to have a pretty strong
case otherwise your time and effort will be better spent on your
own business... Not to mention that the negative press following a
loss can make you look like a goose.
We do not disclaim anything about this article. We're
quite proud of it really.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).