Monday, September 03, 2007

by Dr Wim Alberts
In this matter the use of the claim “25 years of Kingship” was in issue.  It was said that the question is whether the hypothetical reasonable consumer would perceive this as an objectively verifiable factual claim of market leadership.  With regard to whether a claim constitutes puffery, it was said that that cannot be determined in a vacuum and it would necessarily depend on the facts and context of each particular case.
The claim to be the “king” of something is an abstract claim and is in its nature a hyperbolic, exaggerated claim unlikely to be taken seriously by the reasonable consumer.  It was said that, 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 view was adopted that 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.
With reference to earlier cases it was said that the critical test is whether a reasonable person would take the claim being made in an advertisement as literal or not.  Advertising, by its nature, it was stated, contains innuendo, ambiguity and puffing and one can accordingly not apply the literal and realistic claims test absolutely without becoming open to ridicule.
It was said that where hyperbole or puffery is such that a consumer would be deceived into believing that a realistic or serious factual claim is being made, then the claim ceases to be mere acceptable hyperbole or puffery but crosses the threshold and becomes a misleading advertisement.
The position was said to be in contrast with other claims being made such as “odourless”, “mercury free”, “scratch resistant” and others.  In these instances, 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.