The Federal Court’s recent findings serve as a warning to business to make sure that the first impressions you make in your advertising campaigns represent the true position of your product or service offering.

The case, Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 highlights the significance of the first impressions created by your ad campaign and the risk of having a gap between your main message and any ‘fine print’ or qualifications in your advertisement.

Ultimately, TPG was found guilty of misleading and deceptive conduct and was fined $2 million because, according to the Federal Court, the ads were ‘seriously misleading’, the qualifying information was deliberately minimised and there was a risk that offending conduct would reoccur.

Also important to the court’s findings was that the ads were so effective that they increased TPG’s customer base from 9,000 to 107,000 during the campaign period and generated additional revenue of almost $60million.

The key lesson for business is that if the first impression conveys a misleading or potentially misleading impression then the fine print won’t help you. While innovative marketing strategies may be exciting in pushing the boundaries, the risk for business is that they go too far and can end up costing you more than you bargained for.

What can you do?

There are things you can and should do to help protect yourself. These include:

  • Be wary of marketing spin – don’t try and make the product look better than it is – if there’s other pricing or other costs to the customer refer to it up from and prominently;
  • Be very careful about running aggressive campaigns – what impression is your ad really making and how will that impact on your competitors?
  • Get independent and experienced legal advice for your advertising campaigns.

When in doubt, Thynne + Macartney can help you with your advertising campaigns and any other business matters as and when they arise.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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