(a) The Better Frames, Better Lenses Representations
80 Applying the relevant legal principles summarised in [49] above to the Better Frames, Better Lenses Representations, the applicant has failed to persuade me that the relevant representations are misleading or deceptive or are likely to mislead or deceive.
81 The relevant class of consumers to which the representations are directed are wearers (or purchasers) or prospective wearers (or prospective purchasers) of prescription glasses. The relevant question therefore, is whether the phrases used in the Better Frames, Better Lenses Representations were likely to convey the messages which the applicant says they did, namely that:
(a) OPSM's frames and lenses are of a superior quality than those of its competitors; and/or
(b) OPSM's frames and lenses are of a superior or improved quality than those which were previously available at OPSM.
82 For the following reasons, I do not accept that it is likely that those messages would be conveyed to a hypothetical ordinary and reasonable member of the relevant class.
83 First, I prefer the evidence of Dr Van Osselaer to that of Dr Downes on this issue. Dr Van Osselaer's evidence was given dispassionately and authoritatively. He made appropriate qualifications to his views when some of his evidence was tested under a close cross-examination. Generally, however, the views he expressed and explained in his written expert evidence were unshaken in cross-examination. I found him to be an impressive witness.
84 Dr Van Osselaer's evidence is to the effect that a person reading the relevant representations in their context would view the references to "Better Frames, Better Lenses and Better Fit" as conveying one message about the fitting of glasses. I agree. In my view, when read in their context, that phraseology is not likely to convey to a hypothetical reasonable member of the relevant class that the frames or lenses are made of better material at OPSM (whether compared with frames or lenses available at other optical retailers or previously at OPSM). I accept the respondent's submission that the message conveyed by the relevant representations to such a person is along the lines of "we've got great glasses at OPSM, come in and see" or, alternatively, "we've got great-fitting glasses, come in and see".
85 I do not accept the evidence of Mr Hawkins on this issue. Whilst I do not doubt Mr Hawkins' extensive marketing experience, I do not regard him personally as typical of a member of the relevant consumer class given his lengthy employment association with Specsavers and his current position as Joint Marketing Director. His loyalty to his employer is a matter which bears upon the weight to be given to his evidence.
86 Secondly, I accept that it is appropriate in this context to distinguish between consumers who see the relevant front of window merchandising material only fleetingly as opposed to those who enter the store. I agree with Dr Van Osselaer's evidence that a casual observer, such as a busy pedestrian or a passenger in a passing vehicle, is unlikely to gain any specific interpretation or meaning of the text of the relevant representations other than a general message about improvements in the fitting of glasses. In making this finding, I attach particular significance to the formatting of the relevant representations on the front of window merchandising material. As noted above, the key phrases:
BETTER FRAMES
BETTER LENSES
BETTER FIT
appear on both the window poster and window installation in a way which gives greatest prominence to the phrase "BETTER FIT". That is achieved by:
(i) progressively increasing the size of the font of those three phrase lines, with the biggest font being used for the phrase "BETTER FIT";
(ii) the selection of colour contrasting, which makes the larger font used for the phrase "BETTER FIT" even more prominent; and
(iii) the positioning of the phrase "BETTER FIT" towards the centre of the merchandising, such that that particular phraseline is most likely to capture the attention of a passer-by.
The prominence of the phrase "BETTER FIT" is then further reinforced by its proximity to the white silhouette of the glasses frame and, perhaps even more so, by the statement "ACCUFIT EXCLUSIVE TO OPSM" (while also noting that that phraseline appears in much smaller font at the bottom of the poster and may not be seen or comprehended by some passers-by).
87 Thirdly, focusing now more closely on a person in the relevant class who is not a mere passer-by but, who either having seen the front of window material or having accessed the OPSM website and proceeds further into that website, an even stronger message is likely to be conveyed that the relevant representations concern improvements in the accuracy of fitting glasses. That is because a person entering an OPSM store or proceeding past the first page of the website would be likely to obtain an enhanced understanding of the word "better". Under either of those scenarios, the other merchandising material to which such a person is exposed is likely to reinforce and strengthen the overriding message that, because of the Accufit system, a customer can have glasses that fit better, feel more comfortable and work better to correct the wearer's vision. In other words, they can have better glasses. Thus, even if some aspects of the relevant representations are not properly regarded as puffery, when viewed as a whole and in their relevant context, the message they are likely to convey to a member of the relevant class is that, by using the Accufit system, a consumer can obtain better fitting glasses which, from the consumer's perspective, are better glasses.
88 Fourthly, I do not accept the applicant's submission that a member of the relevant class is likely to regard the front of window merchandising material as making comparative claims. Dr Downes gave evidence to the effect that his immediate reaction, as a consumer of prescription glasses himself, was that the orange window poster was making comparative claims and that this would also be the reaction of a hypothetical consumer in the relevant class. I do not accept that evidence. In my view, there is much force in the respondent's submissions summarised in [72] above concerning the weight to be given to Dr Downes' evidence on both this matter and more generally having regard to the circumstances surrounding his visit to the Collins Street store. Dr Downes was asked by Specsaver's solicitors to go to the store and to observe all and any advertising or point of sale material and consider it in the manner in which it is likely to be considered by consumers. He was told that there was a dispute between Specsavers and OPSM and he understood that he was being retained as a witness for Specsavers. The only advertising or merchandising material in the Collins Street Stores related to the Accufit Campaign. A hypothetical member of the relevant class of consumers seeing the merchandising material for the first time would not have the information in mind which Dr Downes must have had when he inspected the store. That information must have coloured to some extent his own first impressions and I do not accept that those impressions ought then to be attributed to a hypothetical member of the relevant class. Even if Dr Downes had not received a detailed briefing about the dispute between the parties prior to his inspection, he plainly was aware of the existence of a dispute and that it must have related to advertising and point of sale material at the store. He was plainly possessed of information which would not be attributed to a hypothetical member of the relevant class. In my view, these matters severely diminish the weight of Dr Downes' evidence. Dr Van Osselaer's evidence was of much greater assistance to the Court.
89 I accept and agree with Dr Van Osselaer's evidence that it is highly unlikely that a relevant consumer would interpret the window poster as making a specific comparative claim comparing the OPSM brand or products to other optical brands or products. Not only is the brand association of the poster weak, but, when viewed in conjunction with the surrounding merchandising material, appears to be designed primarily to entice people into the store, where they can find out more about the subject matter.
90 The applicant placed heavy emphasis on statements made in OPSM's internal marketing material and by Ms Spencer in her oral evidence that one of the objectives of the Accufit Campaign was to create "a point of difference between OPSM and competitors". The internal marketing material referred to is a document entitled "Accufit Financial Business Case" which is dated March 2012 and is directed to the proposed purchase of Accufit units for installation in 411 OPSM stores across Australia and New Zealand. One of the stated key assumptions is that installation of the Accufit units would "improve customer traffic and therefore an appointment uplift of +1.0% by creating a point of difference between OPSM and competitors". I do not consider that that statement establishes that the relevant representations involve comparative claims. The statement is directed to the financial feasibility of proceeding with the installation of Accufit systems in OPSM stores in Australia and New Zealand. The document does not bear directly on the content of the merchandising material. In my view it is too far removed from the particular material complained of by the applicant to support its claim that the representations were comparative.
91 Fifthly, I prefer the evidence of Dr Van Osselaer that the relevant phrases in the Better Frames, Better Lenses Representations have to be looked at in their overall context. That context includes the other visual elements which have the effect of relating the words used to spectacle fitting and to accuracy or precision. These elements include the use of the white silhouetted glasses frame in the centre of the window poster, together with the so-called "cross-wires" and "hairlines" which are symbols of accuracy and precision. These elements are likely to be absorbed by a hypothetical consumer in the relevant class who has a greater opportunity to consider and absorb the merchandising material when compared with the more ephemeral opportunity afforded to a passer-by. I agree with Dr Van Osselaer that the overriding message of accuracy and precision in regard to the fitting of glasses is strengthened even further if a consumer then enters an OPSM store and observes the in-store merchandising material. In my view, having regard to all these matters, the relevant consumer, when viewing the various merchandising material in the context of an OPSM store, is likely to understand the materials as relating to the provision of a better experience with respect to the fitting of glasses, an experience which is facilitated by the Accufit system. Merely because the merchandising material does not make explicit reference to such an "experience" is not determinative. I consider that a reasonable consumer in the relevant class is likely to discern that message from the material as a whole, with its frequent emphasis on the Accufit system (the very terms of which convey the notion of accuracy in fitting).
92 Sixthly, in my view, there is also a fundamental difficulty with this aspect of the applicant's case, which was alluded to in [51] above. It concerns the fact that, notwithstanding that the words "BETTER FIT" appear in two of the three individual representations which make up the Better Frames, Better Lenses Representations, the applicant makes no complaint that the claim of "BETTER FIT" is misleading or deceptive or likely to mislead or deceive. The difficulty which that presents for the applicant's case is that the representations need to be viewed as a whole and in their relevant context. An essential part of that context is the fact that two of the three representations complained of in this category include the terms "BETTER FIT". The third representation complained of is that which appears on the landing page and email, where the expression "BEST FIT" is used in the context of the following larger phrase: "BETTER FRAMES, BETTER LENSES AND THE BEST FIT YOU'VE EVER HAD". The references to "BETTER FIT" or "BEST FIT" are an important part of the relevant context. They necessarily affect the overall message which the material is likely to convey to a member of the relevant class of consumers. Indeed, as explained above, the references to "BETTER FIT" tend to dominate the message conveyed by such merchandising as the window poster and the window installation. In my view, their presence is likely to send a more prominent message to a member of the relevant class when compared with other statements which also appear on the relevant merchandising. I do not accept the applicant's submission that a reasonable member of the relevant class is likely to view the window poster as conveying three separate messages. Rather, those messages are comingled with greatest prominence being given to the notion of a "better" or "best" fit.
93 Furthermore, insofar as the landing page and email is concerned, a relevant consumer who reads beyond the catchphrase:
"DISCOVER ACCUFIT
BETTER FRAMES, BETTER LENSES AND THE BEST FIT YOU'VE EVER HAD"
is left in no doubt that reference is being made to how the Accufit system can help the consumer in obtaining better frames, better lenses and a better fit.
94 Seventhly, I also accept the respondent's submission that it is important to take into account the nature of the relevant class of consumers. Persons who currently wear prescription glasses or are prospective wearers or purchasers of such glasses are well aware that they may choose from a range of frames and lenses and that this invariably occurs after a fitting process. Each of those processes involves time and choice. Such a consumer is unlikely to be surprised to see an optical retailer such as OPSM advertising a better fitting system, better tools for choosing frames or lenses and an overall better fit. This is true not only of a consumer who enters an OPSM store but also of one who clicks through the OPSM website. I accept the respondent's submission that, when viewed in its context, the use of the term "BETTER" means subjectively better because the Accufit system operates to help a consumer select glasses which are more suited to his or her specific needs.
95 Finally, and in the alternative to the findings set out above, I also accept the respondent's contention that the representations appearing on the window poster are advertising puffery. That is primarily because the key phrases "BETTER FRAMES, BETTER LENSES, BETTER FIT" are very general and are incapable of being proven correct or incorrect (see Gillette Australia Pty Ltd v Energizer Pty Ltd [2002] FCAFC 223 at [170]). For reasons given in [87] and [88] above I do not consider that it is likely that a relevant consumer would view those phrases as making comparative claims. Rather, in my view, those phrases involve claims which, as Bennett J observed in Procter & Gamble Australia Pty Ltd v Energizer Pty Ltd [2011] FCA 1347 at [172], reasonable consumers are used to and would not regard, by themselves, as making an implicit comparative claim. Nor are they likely to be regarded by a relevant consumer as making a statement of fact in the sense described in Jainran Pty Ltd v Boyana [2008] NSWSC 468.
96 For these reasons, I find that the applicant has failed to make good its claims concerning the Better Frames, Better Lenses Representations.