A recent, and somewhat surprising, Australian case has highlighted the risk for advertising agencies when preparing advertising copy. In Budget Eyewear v Specsavers  FCA 507, the Australian Federal Court granted an interlocutory injunction stopping Specsavers from running an ad campaign in which the words used were extremely similar to wording used in a campaign by their competitor, Budget Eyewear, on the basis that there was an arguable case that this amounted to an infringement of Budget Eyewear’s copyright in the advertisement.
By way of example, the Budget Eyewear original advertisement stated “If your Specsavers glasses break – and we’re not saying they will – simply bring them into Budget Eyewear. We’ll replace them with a pair from our own range – free of charge”. Compare that with Specsavers wording “If your OPSM glasses happen to break, and we’re not saying they’re going to, we’ll exchange them with a pair from Specsavers with a 2 year guarantee, for free”.
Judge Bennett decided that this and other similar wording within the advertisements amounted to more than the copying of an idea. She stated that “the way in which a concept is expressed in an advertisement intended to attract customers may involve originality that attracts copyright protection.” She also stated that “Specsavers could have copied the idea but exercised its own imagination to express a novel concept in new and different language rather than using a thesaurus to substitute a synonym”.
It seems a rather odd decision, especially since Specsavers could probably find similar wording in any number of past advertisements, and no doubt they will raise this at trial, but it certainly cuts against the general belief that generic advertising promotional wording is unlikely to be protected by copyright. However it does serve as a reminder that advertising agencies need to ensure that their creative teams are properly creative when copying (or should we say parodying?) competitor’s ideas, and show more originality than merely using synonyms.