In the recent case of Singtel Optus Pty Limited v Vodafone Pty Limited, Optus sought an injunction to restrain Vodafone from airing two commercials promoting their ‘Infinite’ mobile phone plan on the basis that they were misleading and deceptive to the ordinary consumer.

Optus claimed that the new commercials were misleading as they did not detail restrictions within the plan for example, that the plan did not allow for the making of calls to satellite phones.

The Court held that the ordinary and reasonable consumer would do more than ‘simply rely upon these particular television commercials in deciding whether or not to sign up to the respondent’s plan’.

It was further noted that there was no evidence to show how many people in Australia used satellite phones and whether Vodafone’s commercials would be of any interest to them.

The scant evidence presented to demonstrate that the average consumer would be misled or deceived meant that the Court dismissed the argument.

While the Court acknowledged that airing the commercials could draw customers away from Optus that may result in damage, it was ultimately held that Optus’ application was not strong and based on minimal evidence.

This resulted in the Court dismissing the application for injunctive relief. This may not prevent an ultimate finding against Vodafone but for now the commercials may continue to air.