Optus has been slapped with a court injunction, forcing it to stop using the word “boost” in its advertising.
Optus had been taken to court by Boost Mobile, a mobile virtual network that runs on Telsta’s infrastructure. Boost said that it had been using the word for more than two decades to sell prepaid mobile contracts and refurbished phones.
Optus had launched “Optus Internet Boost” and “Optus Mobile Boost” in January and February this year.
While Optus maintained that “boost” was an ordinary word that accurately described the effect of its new products, Boost claimed that it was an integral part of its brand and considers it to be its most valuable asset. In fact, the company had invested more than $10 million per year in building its brand.
“I consider that consumers are likely to be misled and that this confusion will result in significant and irreparable harm to Boost,” said Boost Mobile CEO Warren Hardy.
“Any use of the Boost brand by Optus would curtail future planned growth opportunities, and would require Boost to alter its marketing to avoid consumer confusion.”
Optus maintained that the risk of consumers buying its services, while mistakenly believing that they were getting their phone or data from Boost Mobile was “non-existent or at best vanishingly small.”
There was, however, a smoking gun.
“The damning evidence for Optus was apparently a marketing document that was tabled during the hearing that did actually show Optus had recognised the fact there was Boost Mobile out there,” said Tech Guide Editor Stephen Fenech.
The judge, Mr Justice Tom Thawley said that, “The imperfect recollection of a number of typical consumers would not clearly remember or distinguish between the order of these words. In reaching this conclusion, I do not lose sight of the fact that the BOOST MOBILE mark is a figurative one and “Mobile Boost” are just words.
“It is to be accepted that, where it is used, the word OPTUS cannot be ignored.”
When handing down the injunction, Thawley also added:
“Potential confusion and the risk of damage to Boost will be exacerbated while Optus expands the promotion of its Optus Internet Boost and Optus Mobile Boost features in television appearances and advertising, digital video advertising, radio interviews, social media advertising, digital media process and retail marketing.”
The last six months for Optus have certainly been rough with the brand still reeling from its huge data breach in September last year.
