FEDERAL COURT OF AUSTRALIA
Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd
[2011] FCA 664
Citation: Samsung Electronics Australia Pty Ltd v LG Electronics Pty Ltd [2011] FCA 664 Parties: SAMSUNG ELECTRONICS AUSTRALIA PTY LIMITED v LG ELECTRONICS AUSTRALIA PTY LIMITED File number: NSD 615 of 2011 Judge: RARES J Date of judgment: 18 May 2011 Catchwords: TRADE PRACTICES – application for interim injunctions under s 234 of the Australian Consumer Law to prevent publication of advertisements pending application for permanent injunction under s 232 – whether advertisements conveyed representations that were misleading or deceptive or likely to mislead or deceive contrary to s 18 of the Australian Consumer Law – characteristics of class or classes of ordinary reasonable viewers – effect of conduct complained of on such viewers – use of tests for ordinary reasonable viewer in proceedings for defamation
Held: application for interim injunctions refused
Legislation: Australian Consumer Law ss 18, 232, 234
Competition and Consumer Act 2010 (Cth) Sch 2
Trade Practices Act 1974 (Cth)Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 followed
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 followed
Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 followed
Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 considered
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 followedDate of hearing: 18 May 2011 Date of last submissions: 18 May 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 78 Counsel for the Applicant: Mr DB Studdy SC with Mr JM Hennessy Solicitor for the Applicant: Blake Dawson Counsel for the Respondent: Mr M Walton SC with Mr L Shipway Solicitor for the Respondent: Truman Hoyle Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 615 of 2011
BETWEEN: SAMSUNG ELECTRONICS AUSTRALIA PTY LIMITED
Applicant
AND: LG ELECTRONICS AUSTRALIA PTY LIMITED
Respondent
JUDGE:
RARES J
DATE OF ORDER:
18 MAY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for interlocutory relief be refused.
2.The applicant pay 80% of the respondent’s costs in respect of the application for interlocutory relief heard today.
THE COURT NOTES THAT:
3.The applicant by its senior counsel gives to the Court the usual undertaking as to damages, and that thereupon, the respondent, by its senior counsel, undertakes to the Court that the respondent will not, until a final hearing or earlier other order, by itself, its servants or agents cause to be broadcast on television in Australia the television advertisement described in sub-paragraphs (e) to (i) of the particulars to paragraph 16 of the statement of claim filed on 12 May 2011 (the flickering advertisement).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Continue reading Samsung Electronics Australia Pty Ltd v LG Electronics Pty L...
Sign in free to access the full text
- AGLC
- Samsung Electronics Australia Pty Ltd v LG Electronics Pty Ltd [2011] FCA 664
- Case
- [2011] FCA 664
- Decision Date
CaseChat Overview and Summary
The court examined the advertisements closely, considering their humorous and light-hearted approach. It concluded that while humor could be a persuasive tool, it was the way in which the humor was used and the impressions it left that were critical. Regarding the brightness representation, the court found that the advertisement did not convey the impression that conventional 3D televisions had to be viewed in the dark, and any such misleading impression would be dispelled upon entering a store where televisions were displayed in well-lit conditions. The court also considered that the advertisement could convey that LG screens were brighter than conventional 3D screens, but this was not the only possible representation.
Based on the above considerations, the court refused the application for interim injunctions. It ordered that Samsung pay 80% of LG's costs related to the application for interlocutory relief. Additionally, the court noted that Samsung provided an undertaking as to damages, and LG undertook not to broadcast the specified advertisements until a final hearing or further order.
Orders
Orders of the court
1. The application for interlocutory relief be refused.
2. The applicant pay 80% of the respondent’s costs in respect of the application for interlocutory relief heard today.
THE COURT NOTES THAT:
3. The applicant by its senior counsel gives to the Court the usual undertaking as to damages, and that thereupon, the respondent, by its senior counsel, undertakes to the Court that the respondent will not, until a final hearing or earlier other order, by itself, its servants or agents cause to be broadcast on television in Australia the television advertisement described in sub-paragraphs (e) to (i) of the particulars to paragraph 16 of the statement of claim filed on 12 May 2011 (the flickering advertisement).
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The advertisements convey a light-hearted or humorous approach to the comparison of the two products: active technology (or conventional) and passive technology 3D televisions. That does not mean that ridicule or humour cannot be a very powerful and persuasive weapon. Humour can be deployed by an advertiser to induce loyalty to its product or to disparage its competitor’s. Again, it is the way in which the humour is used and the likely impressions to be left with the consumer that must be weighed in all the circumstances, in order to determine whether there is a sufficient likelihood that, at the trial, the representations will be found to have been conveyed and also be found to be misleading or deceptive. CONSIDERATION – THE BRIGHTNESS REPRESENTATION Samsung argued that the brightness representation would be conveyed because the viewer would be led to believe that when the active glasses were being used, it was necessary to do so in the dark. This was because, it argued, the left hand side of the screen depicting conventional 3D technology was in darkness that needed to be eliminated by the clicking of the light switch and references were made in the voiceover to a dimmer view and the viewer being in the dark. When looking at the brightness advertisement, I am not sufficiently persuaded that it is likely that Samsung will establish at the trial that the ordinary reasonable viewer would have understood it to convey that those viewing conventional 3D televisions would be sitting in the dark and that they had to use their active glasses in the dark in order to see the product properly. Even if the humour in the advertisement conveyed such an impression, it would be immediately dispelled as soon as anyone walked into an ordinary electronics shop simply by the fact that there would be no display of any television products being in the dark in order to view them. There was no evidence to suggest any shops displayed any 3D televisions in a darkened area. It is highly likely that the ordinary reasonable viewer contemplating a purchase of a 3D television would enter a store and see an array of televisions in front of him or her, including all brands of conventional 3D ones. So, in a practical sense, the likelihood of damage flowing from any misleading or deceptive impression that might initially have been conveyed by the brightness advertisement, that one had to view the conventional 3D televisions in the dark, is remote. Any such impression would be dispelled at the point of sale: Knight 242 ALR at 598 [54]-[55]. Secondly, LG argued that the advertisement conveyed a representation that LG screens were brighter than the conventional alternative. That is certainly one possible representation that the advertisement is capable of conveying, although it does not necessarily exhaust the representations that it conveys. I do not think it is far fetched that the advertisement could have conveyed the representation that conventional 3D television screens were darker than the LG 3D television screens.