EXCLUSIVE: A bitter feud that started in Korea when a senior Samsung executive used ‘profanities’ to insult LG’s 3D TV technology, has spilled over into the Australian Federal Court, with Samsung Australia seeking leave to have LG’s 3D TV advertising banned from Australian television networks, claiming that they are misleading and deceptive.
The fight between the two Korean TV giants started when Samsung Electronics’ Executive Vice President, Kim Hyeon-seok, got stuck into LG Display CEO, Kwon Young-soo, for his comments about 3D glasses.
Samsung Australia then took the issue a step further by claiming in the Federal Court that LG Australia was peddling lies about the performance of their 3D TV technology versus the active shutter technology that Samsung was offering.
Judge Rares of the Federal Court disagreed and refused Samsung’s application for an interim injunction banning the LG 3D TV commercials that were aired during the recent NRL State Of Origin Series game between NSW and Queensland, which was the highest rating show on Australian television this year.
The feud between the two Korean giants centres on passive 3D TV technology versus Samsung’s active shutter technology.
The fight between the two Korean manufacturers erupted when on May 2nd 2011, just after LG had launched its advertising campaign in Australia, when Samsung marketing executives took two LG advertisement to Samsung’s legal counsel, Mark Dunn, for his opinion.
Dunn immediately referred the two advertisements to Samsung executives in Korea.
On May 6th, Samsung wrote to LG Electronics demanding that LG cease to air its advertisements for 3D televisions.
Samsung claimed that they conveyed representations that were misleading or deceptive or likely to mislead or deceive, contrary to what is now section 18 of the Australian Consumer Act.
LG Australia chose not to respond to Samsung’s request.
Determined to get a response from LG, Samsung on May 12th sought leave in the Federal Court for ex parte relief. By then, Samsung had become aware of a third advertisement that it said was misleading or deceptive.
Some time later, a fourth LG advertisement called “The Flicker Advertisement” was withdrawn by LG after discussions with their legal advisors.
The court heard that the four 15 second LG commercials consisted of a man in a white coat who looked like a laboratory assistant or a scientist. Using a pointer and whiteboard and a divided screen, the man depicted “conventional” active 3D technology on one side of the split screen and the passive technology of LG on the other.
Judge Rares indicated that there is little doubt that the use of this comparative technique in the advertisements would be capable of conveying to an ordinary reasonable viewer of the advertisements that, by reason of its market leadership and prominence, that the competitor was Samsung.
The four commercials were labelled the “Brightness advertisement,” “The Flickering Advertisement,” “The Weight Advertisement” and “The Batteries Advertisement.” All four commercials were played to the court.
With the “Brightness Advertisement,” the Judge got a live in-court demonstration.
Samsung complained that the brightness advertisement conveyed a representation that consumers of 3D televisions that utilise active technology, including the Samsung 2010 3D TV and the Samsung 2011 3D TV, will be in darkness when viewing their television, as their screen will not give off the same glow or brightness as the LG 2011 3D TVs.
The Korean company said that the weight advertisement conveyed representations that consumers of 3D televisions that utilise active technology, including the Samsung 2010 3D TV and the Samsung 2011 3D TV, would suffer discomfort and/or adverse side effects from which they would need to “recover,” and that Samsung Australia’s 3D glasses are heavy and require frequent, disruptive recharging.
Samsung asserted that each of these representations was false. It said that the brightness representation was false because viewers would not have to be in darkness when watching their conventional 3D television, including, in particular, Samsung’s 2010 and 2011 products, as their screen would give off at least the same glow or brightness as the LG 2011 3D TVs.
Samsung asserted that the weight representations were false because, in effect, viewers utilising active technology would not, through using the active 3D glasses, suffer discomfort and/or adverse side effects from which they would need to recover. It also argued that active 3D glasses were not heavy and that they did not require regular, disruptive recharging. Samsung also relied on the latter reason for falsification to negate the battery representation.
After watching all four commercials and after listening to extensive arguments from Samsung’s legal team, the application for interlocutory relief was refused, with Samsung ordered by the Court to pay 80% of the respondent’s costs.
Judge Rares said, “When looking at the brightness advertisement, I am not sufficiently persuaded that it is likely that Samsung will establish at the trial that the ordinary reasonable viewer would have understood it to convey that those viewing conventional 3D televisions would be sitting in the dark and that they had to use their active glasses in the dark in order to see the product properly.”
He went on to say, “Even if the humour in the advertisement conveyed such an impression, it would be immediately dispelled as soon as anyone walked into an ordinary electronics shop simply by the fact that there would be no display of any television products being in the dark in order to view them. There was no evidence to suggest any shops displayed any 3D televisions in a darkened area. It is highly likely that the ordinary reasonable viewer contemplating a purchase of a 3D television would enter a store and see an array of televisions in front of him or her, including all brands of conventional 3D ones.”
He concluded, “In a practical sense, the likelihood of damage flowing from any misleading or deceptive impression that might initially have been conveyed by the brightness advertisement, that one had to view the conventional 3D televisions in the dark, is remote. Any such impression would be dispelled at the point of sale.”
Samsung Australia Marketing Director Lambro Skropidis has not returned SmartHouse calls.
Michael Doyle, General Manager of Retail at LG Electronics Australia, said that he could not comment as it appeared that Samsung Australia was set to take further action to try and get the LG TV commercials banned.
He did say that that LG Australia was experiencing excellent sales of the 3D Smart TVs following the launch of the TV commercials.
See separate story on what Samsung told the Federal Court about their technology versus what LG is offering.
