The Spring Racing Carnival is one of the most important periods in the racing calendar and, accordingly, one of the most important periods for advertising in the racing industry.
The recent Federal Court judgment in Tabcorp Holdings Limited v Sportingbet Australia Pty Ltd1 provides a timely reminder that advertising must be accurate and comply with the Trade Practices Act 1974 (Cth). Whether in the racing industry or otherwise, advertising claims must not convey misleading representations (either expressly or through implication) to members of the relevant consumer class. In particular, special care must be taken with comparative advertising to ensure that statements made are correct. Courts may be slower to withhold injunctive relief in matters brought under the Trade Practices Act as there is an element of public interest involved, yet it is critical that parties seeking urgent relief react quickly.
In these proceedings, in the lead up to the Spring Racing Carnival, the respondent commenced an extensive campaign featuring its CEO, ‘Sullo’, in a series of television, radio and print advertisements. The tagline for the advertising campaign was ‘Sullo says’ and in each of the advertisements ‘Sullo’ would seek to educate consumers as to the claimed benefits of betting with his business, in contrast to the applicants’ business.
The Federal Court held, on an interlocutory basis, that there was a serious question to be tried in relation to whether some of these advertisements were misleading in contravention of section 52 of the Trade Practices Act. The relevant standard on an urgent interlocutory hearing is whether there is a serious question to be tried. On this basis, the Federal Court made interlocutory orders immediately restraining the respondent from running these advertisements.
The proceedings were subsequently resolved by consent, with the respondent providing the Court with permanent undertakings that it will no longer run these advertisements.