Friday, January 25, 2008

23 January 2008
A recent court judgement sheds some light on the contentious issue of product puffery.
Product puffery and unwarranted claims that mislead the public have long been contentious - and frequently grey - marketing issues.
A recent judgement, Rhino Linings v National Urethane, helps to shed light.
Here the claim, "25 years of Kingship", was at issue on two counts:
• Would the hypothetical reasonable consumer perceive this as an objectively verifiable factual claim of market leadership?
• Whether or not a claim constitutes puffery cannot be determined in a vacuum but would depend on the facts and context of each particular case. 
The court found that claim to be the "king" of something was abstract, hyperbolic and exaggerated, and unlikely to be taken seriously by the reasonable consumer.
Depending on the context, it could imply or suggest a variety of things, including "the best", "the most powerful", "the most popular", "the most regal", "the most effective" or, as was argued in the case, "the leading brand or product".
The court decided it was a clear case of puffery of one’s own goods and the reasonable consumer was said to be likely to understand it in that light.
It referred to earlier cases that had found that the critical test was whether a reasonable person would take the claim being made in an advertisement as literal or not. Advertising, by its nature, contained innuendo, ambiguity and puffing and one could accordingly not apply the literal and realistic claims test absolutely without becoming open to ridicule. 
Where hyperbole or puffery was such that a consumer would be deceived into believing that a realistic or serious factual claim was being made, then the claim ceased to be mere acceptable hyperbole or puffery but crossed the threshold and became a misleading advertisement.
The position was said to contrast with other claims, such as "odourless", "mercury free" and "scratch resistant", where the claims would clearly be understood to relate to objectively verifiable facts.
The phrase "25 years of Kingship" was accordingly found not to be misleading.
*Dr Wim Alberts is a partner in commercial law firm Bowman Gilfillan.