Summary
There is the case of comparative advertising examples as comparative as judgment in a strategy brought by the contender (Samsung) against the respondent (LG) in relationship with a development of TV promotion (TVC) and related web, film and inspiration driving offer progressing gotten a handle on by or in light of an authentic worry for LG in 2011.
Introduction
Comparative advertising entails the advertisement of goods or services by a party while comparing those goods or services to those offered by another party.[1] The sole aim in such comparison is usually to show that the party’s products are better than those of the competitor, with a view to influencing consumer behavior towards such goods.[2] This paper shall discuss decided cases on the issue of comparative advertising and their commercial implications to businesses.
Analysis of Jurisprudence (Comparative Advertising Examples)
An example of Stuart Alexander &Co v Blenders Pty Ltd
The case of Stuart Alexander &Co v Blenders Pty Ltd is now recognized as a locus classics on the issue of comparative advertising.[3] In that case, both parties were distributors of different brands of instant coffee both of which were imported into Australia. The parties were at peace until the Respondent decided to produce its coffee in jars and labels similar to the Plaintiff’s and to, subsequently, broadcast a TV advertisement depicting the Plaintiff’s coffee brand unfavorably, which prompted the Plaintiff to institute the suit.
The Plaintiff contended that the Respondent’s advertisement was misleading or deceptive because it was based on false or misleading depictions regarding the quality and price of the Plaintiff’s products. The Court, in allowing the Plaintiff’s claim, made a finding that indeed the television advertisement at issue conveyed the false impression that the Defendant’s coffee was imported while the Plaintiff’s was not. For this reason, the Court issued injunctive relief against the Defendant.
Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd
The dispute in Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited arose out of a series of television commercials run by the Defendant, LG Electronics Australia Pty Limited, advertising 3D TV sets.[4] The background to the impugned advertisement was that Samsung first released its 3D TV in about April 2010. Subsequently, other 3D televisions including the ones manufactured by LG entered the Australian market before April 2011. Both the Samsung and LG TVs used the “active shutter” technology. However, in April 2011, LG launched a new technology of 3D TVs to wit, “passive” technology 3D TVs. The passive technology, on the one hand, made it possible to have two full images displayed on TV screen at the same time and the viewer uses 3D glasses which do not shutter or require a power source. On the other hand, the shutter technology TVs were designed in such a manner that images are displayed one after the other and the viewer uses battery-operated glasses which lighten and darken about 60 times per second per lens.
Taking advantage of the differences between the shutter and passive technologies afforested, LG in its TV commercials made representations to the effect that using Samsung’s shutter technology could lead to discomfort among viewers because of the shuttering effect of Samsung’s TVs. It is this representation that Samsung challenged, arguing that the same was misleading or deceptive, or likely to mislead or deceive and as such a contravention of the dictates of the Competition and Consumer Act. In addition, Samsung sought damages and injunctive orders for the tort of injurious falsehood. In its defense, LG argued that the impugned commercials only employed humor and parody to convey information about LG’s 3D TVs and that although there was comparison made to Samsung’s conventional 3D TVs, the same could not be reasonably taken as a depiction of the experiences presented by each TV.
The Court, while declining to consider LG’s humorous style defense, held that LG’s commercials were in fact misleading, deceptive or false. In arriving at its decision, the Court reasoned that any reasonable viewer of the impugned commercials would most likely conclude that the commercials were a presentation of an accurate and true comparison between the two different TV technologies, leading the viewers into error. The Court, however, found no merit in the injurious falsehood claim.
Implications and lessons for businesses
The two cases analyzed above reinforce the spirit and letter of the Trade Practices Act on comparative advertising. From the reasoning of the two Courts, it becomes clear that while, under the Australian Trade Practices Act, comparative advertising is permitted, it can only be done in a manner that not false, misleading or deceptive.[5] As such, it behooves any businesses intending to employ such advertising to ensure that they do not make statements that may turn out to be untrue or misleading. Indeed, Lockhart J made the following observations in Stuart (supra), which are quite instructive as to the expected standard of care expected in comparative advertising, thus:
“When a person produces a television commercial that not only boosts his own product but, as in this case, compares it critically with the product of another so that the latter is shown up in an unfavorable light by the comparison, in my view he ought to take particular care to ensure that the statements are correct.”[6]
Unlike the tort of injurious falsehood, the threshold required in proving that comparative advertisements are misleading or deceptive is significantly low since there is no need for a claimant to prove actual falsity, malice, or damage.[7] Accordingly, businesses using comparative advertising ought to satisfy themselves that even when the statements made about a competitor’s products are factually true, they are not capable of misleading viewers of consumers.[8] This is based on the long standing position that consumers do not always have the opportunity to carefully verify or scrutinize the accuracy of statements made in advertisements, hence the possibility of misleading impressions arising out of true representations.[9]
From the foregoing, there is need for businesses to exercise abundance of caution and care in determining how and when to employ the use of comparative advertising. As exemplified by Australian Jurisprudence and commentaries thereof, liability from misleading or deceptive representations could arise even when the representations at issue are true. Therefore, the duty of care imposed upon businesses is a special one, hence the need for caution.
Conclusion
The lessons from the above two cases regarding Comparative Advertising Examples is that The concluding remark for the case Glaxo vs Reckitt is that engaged in misleading and deceptive conduct in contravention by the Consumer law is that is totally unethical and violation law. And, the frim who is responsible to the engaged in misleading and deceptive conduct without the form of scientific knowledge or just copying the module of the other company like Glaxo and the selling or distribution of such product is illegal. And, there must have legal actions to sue and claim compensation and that is happened for Glaxo and Reckitt. The lessons revealed it is a punishable task. The lessons from the case of Samsung and LG under the background of the advertising material that was misleading or deceptive is also a punishable offence. It is also a illegal business practice by the company like LG and that why the allegation is given and the legal procedure will clam the compensation for this illegal and punishable offence. So, both case revealed that it is illegal business practice that violate the law.
References (Comparative Advertising Examples)
Beard, Fred K, Comparative Advertising: History, Theory, and Practice (Lexington Books, an imprint of The Rowman & Littlefield Publishing Group, Inc.2018).
Gupta, Ruchi, Advertising Principles and Practice: For Students of B Com, BBA, MBA and Other Professional Courses (S. Chand & Company2012).
Kapnoullas, Stephen and Bruce Clarke, “The Legal Regulation of Comparative Advertising” (1995) 11 QUT Law Review 18.
Pengilley, Warren, Trade Practices and You: A Compliance Manual for Companies (Legal Books1992).
Footnotes
[1] Gupta, Ruchi, Advertising Principles and Practice: For Students of B Com, BBA, MBA and Other Professional Courses (S. Chand & Company2012) 339; Beard, Fred K, Comparative Advertising: History, Theory, and Practice (Lexington Books, an imprint of The Rowman & Littlefield Publishing Group, Inc.2018) 171.
[2] Ibid – Comparative Advertising Examples.
[3] Stuart Alexander &Cov Blenders Pty Ltd (1981) ATPR 40-244 at p 43,203.
[4] Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited [2015] FCA 227.
[5] Trade Practices Act 1974 (Cth) s 52.
[6] Stuart Alexander &Cov Blenders Pty Ltd (1981) ATPR 40-244 at p 43,203.
[7] Kapnoullas, Stephen and Bruce Clarke, “The Legal Regulation of Comparative Advertising” (1995) 11 QUT Law Review 18.
[8] See, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44.
[9] Pengilley, Warren, Trade Practices and You: A Compliance Manual for Companies (Legal Books1992).
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