Optus chalks up second court victory against Telstra

‘Empires end’ ad doesn’t mislead, court finds

Telstra has lost its fight to have an Optus ad that takes a pot-shot at Australia’s largest telco deemed misleading.

The online and billboard ads that have run since May featured a Telstra-style phone box that in the words of Justice Robson appeared “half-sunk and lopsided, like the decayed remains of a past era, sticking up conspicuously from the lone and level sands”.

The ad uses the slogan “Empires end. That’s what they do” and states: “The Optus Mobile Network has been ranked the best overall in voice and data.”

The claim is based on a mobile benchmark report issued by P3 in Dec 2017.

In the P3 tests, Optus scored higher than Telstra when it came to voice, while Telstra scored higher in the data category. The overall P3 results put Optus three points ahead of Telstra, out of a possible score of 1000.

Telstra argued that the ad implied there had “been a significant and permanent change in the relationship between the Telstra and Optus mobile networks” and that Optus is “now undisputedly operating a better mobile network overall than Telstra.”

“It would be fanciful to imagine that the humorous image of a Telstra phone box in a desert landscape would persuade a reasonable person that Telstra’s strong position in the market has been permanently destroyed,” Justice Robson found

The judge found that “ordinary and reasonable people within the class of potential purchasers of mobile telephone services” were unlikely to be misled by the Optus ad.

The reference to the P3 benchmark report “lends a legitimising air to the advertisement’s allusions to empires ending” but the judge found that it “does not overcome the background knowledge of reasonable consumers, nor the obviously humorous nature of the advertisement.”

Justice Robson dissolved an interlocutory injunction he had granted on 16 May that had compelled Optus withdraw any advertisements using the “empires end” material.

An Optus spokesperson told Computerworld's sister publication ARN that the telco was “very pleased with the outcome”.

Earlier this month Optus emerged victorious from separate Federal Court legal action against Telstra. The court found that Telstra ads that employed the slogan “One word from Australia's best mobile network. Unlimited.” falsely represented that the telco offered a mobile product or service that is unlimited.

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