In their latest legal dispute, Specsavers challenged three specific types of representations that Luxottica made during the promotion of their Accufit glassesfitting system. Specsavers asserted that comparative advertising in the Accufit promotion was misleading or deceptive. The Court disagreed.
Eye for an eye
Upon setting up in Australia about 5 years ago, Specsavers has fought hard to achieve a share of a retail optometry market reportedly worth over $1b a year. Its main competitor Luxottica (the parent company of OPSM, Sunglass Hut and Laubman and Pank) has approximately 35 percent market share compared to Specsavers’ 20 percent.
Over the last few years the two competitors have been engaged in a number of legal stoushes over advertising campaigns. This time Specsavers was concerned with Luxottica’s Accufit promotion, and in particular whether the use of the word “better” in the tag line “Better Frames, Better Lenses, Better Fit” was in effect making a comparison to Specsavers’ goods and services.
We’re watching you – seeing is believing
What is Accufit? Luxottica’s Accufit system advertising campaign promoted a sales tool that combined:
- a ‘virtual mirror’, which photographs customers wearing a number of prospective frames and then displays them to the customer side-by-side
- a ‘lens simulator’, which allows a customer to look to understand the different experience of various lens products (e.g. single vision compared to bifocal lenses), and
- a ‘fit sensor’, which ensures the optical centre of the lens is precisely placed within the frame.
Specsavers alleged three representations made in the course of the Accufit advertising campaign breached the Australian Consumer Law (ACL).
The ‘Better Frames, Better Lenses Representations’:
central to Luxottica’s advertising campaign was the slogan ‘Better Frames, Better Lenses, Better Fit’. Specsavers claimed that the overriding message was that the frames and lenses now available at Luxottica’s stores were of a superior or improved quality than those available previously or at Specsavers’ stores.
The Availability Representation:
Luxottica’s advertising claimed that their Accufit system was available ‘in OPSMs everywhere’. Specsavers claimed this representation was misleading on two grounds: firstly, there were a small number of OPSM stores that the Accufit system was not deployed to at the start of the campaign, and secondly, Specsavers claimed that mystery shoppers they had sent to OPSM stores had not been offer the full use of the Accufit system.
The Ruler Representation:
another line from Luxottica’s ads was that ‘once upon a time, fitting your prescription into your lenses involved a ruler, a felt pen and a steady hand. Thanks to the Accutfit Fit Sensor, that’s now obsolete.’ Specsavers claimed this representation implied that they and other opticians still fitted lenses in the manner described.
The Federal Court found that Specsavers failed to establish misleading or deceptive conduct in relation to any of the three representations.
Making a spectacle or Puff-y eyes
In regards to the “Better Frames, Better Lenses” representation, the Court held that such a representation had to be considered in light of the final part of the slogan, “Better Fit”, especially when considering the design of much of the advertising material, which gave greater prominence to “Better Fit” than “Better Frames” and “Better Lenses”. The Court accepted evidence that the overriding message of the advertisements was that Accufit system would result in the customer receiving better fitting glasses, and hence “better” frames and lenses. Further, in the alternative, the Court considered the slogan to be mere puffery (an old word for acceptable marketing spin and hype), as the terms were very general and incapable of being proven correct or incorrect.
The Availability Representation was also rejected. The ‘mystery shopper’ evidence was deemed to be insufficient to demonstrate unavailability of the Accufit system, as the mystery shoppers had been given access to at least one part of it. Secondly, while there were three stores that did not have Accufit deployed at the start of the advertising campaign, the unavailability of the system at these stores was a mistake on the part of Luxottica and was not a deliberate design or strategy. The Court held that this inaccuracy in the advertising was inconsequential, especially given the fact that OPSM’s 348 other stores had the system available, and did not amount to misleading or deceptive conduct.
Finally, the Ruler Representation was also rejected, the court holding that a reasonable consumer of optical products was unlikely to take the representation literally, especially considering the use of the word ‘once upon a time’, which the Court felt gave the representation a ‘fairy tale’ character.
Looking for suggestions?
When considering whether an advertisement or marketing campaign are misleading or deceptive, it is important to remember that the conduct must be view as a whole and in its full context. It is insufficient to consider part of a slogan or similar in isolation rather than considering it in the scope of the whole advertisement.
Ask whether a hypothetical or reasonable member of the class of persons to whom the advertising is directed is likely to be misled or deceived by the representation. A degree of ‘robustness’ is required when considering whether conduct is misleading or deceptive - the law does not intend to protect the extremely gullible or those who fail to take care of their own interests. Likewise, marketing and advertising hype and exaggerated claims (puffery) are ok but not if there is a definitive statement or consequence. For example, whilst “the best burgers you’ll ever taste!” is ok, the claim “our burgers have less fat that any of our competitors” is probably not ok.
Businesses should not have small parts of their advertising campaigns being taken out of context, picked on and used by competitors as a basis for expensive litigation. The best thing to do is to either avoid making claims (or take care when making anything but the most general claims) about a competitor’s good and services, unless of course such claims can be substantiated.
Businesses and their advertising agencies can be held responsible for the advertising campaigns, whether by a competitor or a by regulator, including the ACCC. Timely advice should be sought on advertising campaigns both at early concept development stages and also at near final production stages. Getting advice before the campaign goes live assists in minimising risk and avoiding liability.