Back in 2011 Samsung claimed that LG advertising for their new 3D capable TV's was misleading and deceptive and likely to mislead or deceive consumers looking to buy what was then the hot new TV technology, since then the technology has failed dismally.
This led to a four year court battle that is only now starting to wind up with no clear winners. In fact both parties have spent millions massaging their pride as 3D technology which the battle was about is dead, gone and well and truly buried.
When the court battle kicked off the LG TVCs and related advertising that have been questioned, were part of a substantial campaign that LG Korea developed for the Australian market to promote a new range of 3D televisions (the LG Cinema 3D TVs), they at the time incorporated new 3D technology known as "film patterned retarder" (FPR) or "passive" technology.
Each of the TVCs ran for 15 seconds and was broadcast in Australia at various times between May 2011 and August 2011. One of the TVC's labelled the "flickering" TVC was broadcast from 1 May 2011 to 7 May 2011 on 131 occasions and on another eight occasions between 5 June 2011 and 15 June 2011.
A modified Flickering TVC was broadcast for one week in August 2011. The TVCs were also screened in cinemas and uploaded onto YouTube. There were almost 15,000 screenings of the TVCs in cinemas between 12 May 2011 and 9 February 2012.
One of the key issues in the case related to point of sale stickers affixed to LG Cinema 3D TVs upon which the expressions "Full HD" and "1080P" are alleged to have appeared.
Samsung claimed that the stickers which appeared in retail stores were also misleading and deceptive.
During the hearings Samsung alleged that LG committed the tort of injurious falsehood by using the stickers, they asked Judge Nicholas for damages.
The 3D TV drama started to unfold on 6 April 2011 when Samsung announced the Australian launch of its 2011D-Series range of plasma and LCD TV's.
The D-Series used active shutter technology and generally operated in the same way as the Samsung C-Series.
On the 14 April 2011 LG launched a new range of LCD/LED 3D TVs called "LG Cinema 3D TV", these TV's incorporated FPR technology which is sometimes referred to as "passive" technology.
Shortly after this sparks began to fly between the two Companies with claims and counter claims.
LG's passive or FPR technology operated quite differently to Samsung's active shutter technology. Unlike the latter, which rapidly displays one full image after another, FPR involved displaying two full images on the screen at the same time. It works by polarising the odd and even lines of image information that appear on the screen. LG claimed that this technology was superior to what Samsung was offering the court heard.
By this stage the issue was what was "The truth" and what was "A half-truth".
Judge Nicholas said that an important consideration relevant to the Court's assessment of the likely impact of the TVCs and, in particular, their propensity to mislead or deceive, was their admittedly humorous style.
LG contended that each of the TVCs, would be recognised by viewers in Australia as using, humour and parody to convey information. They also claimed that viewers would not take the humour as a literal depiction and that the use of humour was a "contextual matter".
It submitted that many of the representations pleaded against LG by Samsung depended upon the viewer taking the TVCs literally in circumstances where no ordinary or reasonable person would do so.
Judge Nicholas said: I think there is considerable force in this submission in relation to many of the representations pleaded by Samsung. Nevertheless, I do not think it provides a complete answer to Samsung's case".
Samsung claimed that the LG's humorous defence set up a false dichotomy between viewers taking the images literally, or "tongue in cheek". Samsung submitted that a misleading or deceptive message can be humorously conveyed by a TVC without it being understood literally.
Judge Nicholas ruled that in his opinion the actual message conveyed by the Flickering TVC is that the conventional 3D technology utilises glasses that shutter and that the shuttering effect causes discomfort and interferes with the viewing experience.
The key message conveyed is that flicker and flickering is a feature of conventional 3D technology which produces side effects from which it may take a viewer some time to recover.
The most obvious side effect called to mind by the flickering depicted in the Flickering TVCs is dizziness, a condition which is likely to interfere with the viewing experience, and from which a viewer may need some time to recover.
The phrase "still recovering?" is central to the message conveyed by the Flickering TVC and gives meaning to the images of the flickering glasses and eyes that would otherwise be absent, by suggesting that dizziness will persist even after the glasses are removed.
He said that he was not persuaded that representations made by Samsung in their submissions were conveyed in the LG advertising.
He claimed that a modified Flickering TVC the voiceover was different and, unlike the Flickering TVC, does not use the phrase "still recovering?" I see this as a significant point of difference. I do not think the Modified Flickering TVC conveys any of the representations pleaded.
Samsung evidence included an expert witness from Roy Morgan Research Gerard Bardsley who is the Manager of Customised Research claimed in an affidavit that a respondent to his research formed the opinion after watching the LG commercials that : "The glasses that one uses for conventional televisions are heavy.
They could cause neck damage and make your chair fall through the floor." Another example quoted by Mr Bardsley has a respondent saying: "The weight of the glasses are unbearable." Mr Bardsley interpreted these respondents as indicating that that they were being told by the Weight TVC "that conventional 3D glasses are too heavy to wear comfortably."
In wrapping up the hearing Justice Nicholas dismissed a lot of the Samsung claims and related evidence he said that Samsung should be required to pay a considerable proportion of LG's costs of the proceeding.
There was also an order requiring Samsung to notify LG within 14 days whether it proposes to maintain its claim for damages.
He also said that Samsung has satisfied him that LG contravened Australian consumer laws by causing the Flickering TVC to be broadcast in Australia during May and June 2011. Samsung has also satisfied the Court that LG contravened the consumer protection act by causing retailer Instructions to be distributed during March and July 2011.
Judge Nicholas found that LG had engaged in misleading or deceptive conduct and had made false representations to consumers in breach of the Australian Consumer Law when advertising its 3D TVs in Australia.
He said that when LG launched an advertising campaign for its passive 3D TVs that contained comparisons with active 3D TV technology used by Samsung and other TV manufacturers they conducted several marketing campaigns.
He indicated that the deceptice conduct was contained in the TV commercials, on its website, and in a trade document, LG made representations to consumers to the effect:
? That the lenses of conventional 3D glasses flicker up to 60 times a second;
? That the shutter effect of the lenses of conventional 3D glasses interferes with the viewing experience;
? That the use of conventional 3D glasses causes discomfort and adverse side effects; and
? That conventional glasses have side effects from which users need time to recover.
Judge Nicholas said that these representations inaccurately described the characteristics of active 3D TVs sold by Samsung and that LG had engaged in misleading or deceptive conduct by making them.
The Court found that: "LG intended the Flickering TVC to convey each of the representations which I have found conveyed. These representations reflected a key message which the creators of the global campaign plainly intended the Flickering TVC to convey and I am satisfied that in all relevant respects, LG's intentions mirrored those of LG Korea".
The Court also found that LG conveyed the following misleading and deceptive representations in a trade document:
? That many people feel dizziness and even nausea from watching conventional 3D TVs because of the constant flickering of the left and right eye images via the conventional 3D glasses;
? That a viewer of conventional 3D TVs has to sit upright or else the images get dark;
? That a viewer of conventional 3D TVs has to sit upright, which makes watching TV really uncomfortable; and
? That LG passive 3D TVs generate a viewable image up to two times brighter than the viewable image generated by conventional 3D TVs.
? The case will return to the Court for the next phase involving Samsung's claims for damages and corrective orders against LG and the recovery of costs.
Both Companies were asked to comment on the issue.
Samsung Electronics Australia said: "We are pleased that the Court has agreed with Samsung that LG misled consumers when advertising its 3D TVs and issuing its instructions to retailers".
LG responded with the following statement: LG Australia is pleased to announce that the recent judgement handed down in the case brought against it by Samsung has vindicated its long held commitment to Full HD Cinema 3D technology.
In a case brought against the company by Samsung in regards to a 2011 marketing campaign promoting the LG Cinema 3D televisions, including LG's use of the terminology 'Full HD' and '1080p' in its advertising and marketing collateral, LG has recorded wins for its Full HD resolution claims, website information, as well as for a number of TVCs promoting the benefits of the LG Cinema 3D technology..
"We are delighted with the decision that has been handed down. It has been a long journey, but we believe the ruling is a clear vindication that LG Cinema 3D TVs deliver Full HD or 1080p resolution and not 'half resolution' as contended by Samsung in the proceedings. Moving forward, LG plans to continue delivering on its commitment to passive 3D technology and creating value for consumers by creating the best home entertainment experiences possible,
Whether it is through LG's Smart TVs, 4K UHD OLED TVs, Ultra HD TVs, IPS monitors, or other product offerings available in our home entertainment range," said a company spokesperson.
See the full 124 page judgement here.