Apple argues only a fool would believe its iPhone 3G ads

[Archipellago]

you were stupid to believe us.

http://www.dslreports.com/shownews/A...s-Anyway-99450

Apple: Who Believes Our Ads Anyway?
Company responds to iPhone 3G speed false advertising suit...
02:57PM Wednesday Dec 03 2008 by Karl Bode
tags: business · wireless · bandwidth · Mac · consumers · AT&T

Apple has been taking heat over global advertisements that show the iPhone 3G performing at speeds vastly faster than real world 3G (or 2G) networks operate. Two such ads were recently banned in the UK, to which Apple responded that the ads were "relative rather than absolute in nature." Here in the States, one 70-year-old San Diego resident filed suit against Apple for misleading advertising. Techdirt directs our attention to the fact that Apple this week responded to the suit, denying that the ads lie, but then adding this comment:
"Plaintiff's claims, and those of the purported class, are barred by the fact that the alleged deceptive statements were such that no reasonable person in Plaintiff's position could have reasonably relied on or misunderstood Apple's statements as claims of fact," Apple said in its answer.
In other words, we're not lying, but you're an idiot if you believed what we were saying. Of course there's a fairly obvious chasm (see video comparison) between the ads and real-world performance. Apple faces five lawsuits related to the performance (or lack thereof) of the iPhone when connected to networks in the real world, but the attorney for this false advertising case thinks their case "has the most teeth and the most legs to it."

[bavlondon2]

The ads now over here have a sting at the end saying the video has been sped up and speed depends on network ect....lol

[AppleInsider]

Apple isn't lying in television ads that tout the iPhone 3G as twice as fast as its predecessor, but customers would have to be fools to take those claims at face value, the company argues.

That's essentially Apple's legal response to a lawsuit filed by San Diego resident William Gillis back in September alleging that Apple and AT&T knowingly oversold the new iPhone alongside misleading ads that promised it would perform twice as fast as the original model.

Apple's 9-page reply begins early off by maintaining that any statements it made "were truthful and accurate and were not misleading or deceptive." But it was a bullet point response a few pages later the caught the eye of Wired, as it suggests that only a fool would believe what the company says in its ads.

"Plaintiff's claims, and those of the purported class, are barred by the fact that the alleged deceptive statements were such that no reasonable person in Plaintiff's position could have reasonably relied on or misunderstood Apple's statements as claims of fact," Apple's attorneys wrote.

Gillis' complaint was the second of now half a dozen to charge the iPhone maker with selling a handset that didn't live up to the company's hype. Apple has moved to dismiss several of the other complaints, but hasn't made the same request regarding the suit at hand.

Michael Ian Rott, Gillis' attorney, believes that's because his client's allegations have "the most teeth and the most legs" and that if there was "any way that Apple could get out of it, they would have filed a motion to dismiss here, too." Or, it could be that Gillis is no stranger to Apple.

The 70-year old and an acquaintance sued Apple back in 2005 for misrepresenting the size of hard drives shipping in the then popular PowerBook G4. Apple ultimately settled, giving Gillis a free iPod and Ian Rott -- yes, the same lawyer -- $7500 to cover his legal fees.

Word of Apple's response in the iPhone suit comes just days after the UK's Advertising Standards Authority banned a television advertisement for the touch-screen handset after 17 viewers "complained that the ad was misleading, because they believed it exaggerated the speed of the iPhone 3G."

Apple's latest banned iPhone ad

The ad, which claimed the iPhone 3G could surf the Internet "really fast," was the second to be pulled from the air by ASA on grounds that it was misleading. In August, the regulator banned a similar 30-second spot which stated that "all the parts of the internet are on the iPhone."

That assertion was misleading, the ASA said, because the iPhone does not support Flash or Java, two proprietary technologies that sometimes prove integral in the display of certain web pages.

[ View this article at AppleInsider.com ]

[Archipellago]

Originally Posted by AppleInsider

Apple isn't lying in television ads that tout the iPhone 3G as twice as fast as its predecessor, but customers would have to be fools to take those claims at face value, the company argues.

That's essentially Apple's legal response to a lawsuit filed by San Diego resident William Gillis back in September alleging that Apple and AT&T knowingly oversold the new iPhone alongside misleading ads that promised it would perform twice as fast as the original model.

Apple's 9-page reply begins early off by maintaining that any statements it made "were truthful and accurate and were not misleading or deceptive." But it was a bullet point response a few pages later the caught the eye of Wired, as it suggests that only a fool would believe what the company says in its ads.

"Plaintiff's claims, and those of the purported class, are barred by the fact that the alleged deceptive statements were such that no reasonable person in Plaintiff's position could have reasonably relied on or misunderstood Apple's statements as claims of fact," Apple's attorneys wrote.

Gillis' complaint was the second of now half a dozen to charge the iPhone maker with selling a handset that didn't live up to the company's hype. Apple has moved to dismiss several of the other complaints, but hasn't made the same request regarding the suit at hand.

Michael Ian Rott, Gillis' attorney, believes that's because his client's allegations have "the most teeth and the most legs" and that if there was "any way that Apple could get out of it, they would have filed a motion to dismiss here, too." Or, it could be that Gillis is no stranger to Apple.

The 70-year old and an acquaintance sued Apple back in 2005 for misrepresenting the size of hard drives shipping in the then popular PowerBook G4. Apple ultimately settled, giving Gillis a free iPod and Ian Rott -- yes, the same lawyer -- $7500 to cover his legal fees.

Word of Apple's response in the iPhone suit comes just days after the UK's Advertising Standards Authority banned a television advertisement for the touch-screen handset after 17 viewers "complained that the ad was misleading, because they believed it exaggerated the speed of the iPhone 3G."

Apple's latest banned iPhone ad

The ad, which claimed the iPhone 3G could surf the Internet "really fast," was the second to be pulled from the air by ASA on grounds that it was misleading. In August, the regulator banned a similar 30-second spot which stated that "all the parts of the internet are on the iPhone."

That assertion was misleading, the ASA said, because the iPhone does not support Flash or Java, two proprietary technologies that sometimes prove integral in the display of certain web pages.

[ View this article at AppleInsider.com ]

wow I beat Kasper to it!!

[Archipellago]

Originally Posted by bavlondon2

The ads now over here have a sting at the end saying the video has been sped up and speed depends on network ect....lol

apple deserve to be royally scr**ed for this.

[bavlondon2]

No they dont. If yours stupid enough to watch the ad and then say mine doesnt do it as fast as that then you are just plain naieve.

[Archipellago]

Originally Posted by bavlondon2

No they dont. If yours stupid enough to watch the ad and then say mine doesnt do it as fast as that then you are just plain naieve.

no they said it was 'twice as fast'.... and it wasn't.

[fraklinc]

Well not everyone believes that drinking coors light is gonna get you laid ether so it kind of make sense, but it is twice as fast as the previous version but nothing more

[skottichan]

Originally Posted by Archipellago

no they said it was 'twice as fast'.... and it wasn't.

Actually, according to most tests, "twice as fast" is a conservative claim.


http://www.everyipod.com/iphone-faq/...d-testing.html

[BenRoethig]

Originally Posted by AppleInsider

Apple isn't lying in television ads that tout the iPhone 3G as twice as fast as its predecessor, but customers would have to be fools to take those claims at face value, the company argues.

Uh, Apple, that's exactly what you've conditioning your user base to do, take everything at face value.

[applestockholder]

only a fool would believe that
- tide actually washes whiter than other detergents
- Coke tastes better than Pepsi (or vice versa)
- AIG is the best insurance
- Geiko is the best insurance deal for cars
- etc.
or?
-------
Please tell me which car to buy, cause I need some honest opinions, wait! I will watch prime time TV tonight, sure to find an honest answer there
-------
Anyone who believes any advertisements is setting themselves up to be fooled. I do not understand why Apple is being held to a higher standard than any other advertiser. As a previous poster pointed out, there are definitely circumstances in which G2 iPhones are 2 or more times faster....

just a biased opinion by an applestockholder...!??

[wheelhot]

I see no wrong with Apple lying in ads cause this happens ALL the time, people like to make it a big deal cause its Apple and everyone knows how popular are iPod or iPhone so by suing them its like free air time.

MS lies about Vista, Coke lies about their product, my national internet company lies about their internet can make people smarter so this is just a way for people to get money the easy way.

Ads is meant to sound nice for people to read and hear. Go and read reviews and forums for the real truth. Period

[gwilli]

To be fair, if we took every advertisement at face value and complained about every single one none would be aired. We did advertisements for IKEA and people complained to the ASA saying that it promoted household violence, people complain to much instead. If you don't like it, take it back!

[Bageljoey]

Originally Posted by fraklinc

Well not everyone believes that drinking coors light is gonna get you laid ether so it kind of make sense, but it is twice as fast as the previous version but nothing more

Yeah, it is hard to feel sorry for someone who takes advertising at face value...
It is not as if you couldn't wait until the phone had been out for a a few weeks and do some casual research into the reviews.

I am quite sure that Apple exaggerated their examples (the videos for example), but they did wrap them around a grain of truth which is the standard for advertizing in this day and age.

I don't think it is ideal, but a lawsuit? Frivolous comes to mind...

[davidandru]

My Touch doesn't even perform at speeds like that over wifi and a relatively fast (3 mbps+) connection speed... I can't imagine 3G outperforming that.

[themoonisdown09]

This is so rediculous. Apple is trying to show off the different features of the iPhone. Does anyone really want to watch a 10 minute commercial showing the features in real time? Hell no!

It's stupid people like the ones who complained about it being misleading that make companies have to write "enlarged to show texture" on cereal boxes.

[filburt]

Originally Posted by AppleInsider

That assertion was misleading, the ASA said, because the iPhone does not support Flash or Java, two proprietary technologies that sometimes prove integral in the display of certain web pages.

I am not aware of any web sites (that are not obscure anyway) that still use Java. Heck, not even Java's website uses Java.

That said, I do think the ad is misleading.

[freelander51]

Originally Posted by bavlondon2

No they dont. If yours stupid enough to watch the ad and then say mine doesnt do it as fast as that then you are just plain naieve.

I beg to differ - on a phone network OK but on wireless no way Jose. Safari is quite slow to render pages even when you are sitting next to the router on a corporate network connection where I would define the bandwidth with 'sufficient'

I can see how people might be disappointed about this and as it is the trend of the time to immediately sue, hoping one gets at least a free iPod and 15 Minutes of fame.....

[Silencio]

Whatever settlement Apple is stuck with in this case, they should turn to ATTWS and present them with the bill.

A decent 3G network should be twice as fast as EDGE with plenty of room to spare, but good old ATT couldn't deliver and Apple's the one getting dinged for it.

[daniel84]

Originally Posted by themoonisdown09

This is so rediculous. Apple is trying to show off the different features of the iPhone. Does anyone really want to watch a 10 minute commercial showing the features in real time? Hell no!

Exactly! People go to the keynote for that. And we've all seen Steve taking a little while to load nyt.com on his iPhone... despite the ads.

[Lafe]

Originally Posted by Silencio

Whatever settlement Apple is stuck with in this case, they should turn to ATTWS and present them with the bill.

A decent 3G network should be twice as fast as EDGE with plenty of room to spare, but good old ATT couldn't deliver and Apple's the one getting dinged for it.

Excellent point! ATT has underserved most of the US with their promised Super 3G Upgrade
that only happened in certain areas (and slowly).

Was the ad misleading? Sure it was. All ads are misleading. That's their purpose:
Portray your product in the most glorious possible way and using snappy, cool,
memorable terms, without actually lying.

Ads are supposed to push the envelope. Did this one push a little too far? Did
it cross the line? We'll see how the suit turns out . . .

[iReality85]

People, it was false advertising on Apple's part, plain and simple. Go take marketing 101. As for comparing Apple's ad to other companies' "deceptive" ads, many of the examples people have tossed around are based on perception and are suggestive. What's different about Apple's ad is that they spelled it out. They said it. There is nothing to suggest, it is absolute- "Twice as fast." So, why then can't we take Apple's ad at face valve, since they so blatently and literally "spelled it out" for us? This lawsuit is fair game.

[DimMok]

All Commercials are evil.
Thats why DVR's were invented.....SKIP IT.

And move on with your life.

[solipsism]

Originally Posted by Silencio

A decent 3G network should be twice as fast as EDGE with plenty of room to spare, but good old ATT couldn't deliver and Apple's the one getting dinged for it.

AT&T delivered more than 2x the speed to me, and it seems most other people are getting at least 2x the speed. They clearly state on their contract that 3G isn't available in all areas.

Apple's radios for 3G are capable of 7.2Mbps, which is considerably faster than 2x the theoretical speed of EDGE. But Apple isn't advertising the speed of the 3G radios. They don't even state on teir tech specs page the theoretical speed, yet I doubt their is another 3G cellphone out there on a manufacturer's website that isn't listing that lab speed, yet they don't seem to be getting sued for not actually having 7.2Mbps or 14.4Mbps for their 3G.

[ltcommander.data]

While it may be true that it'd be foolish to take any advertising at face value, I'm surprised Apple is so blunt about it as their defense. It may be true, but it has terrible PR implications. Personally, I think the lawyer writing the argument got his or her grammar wrong. No doubt Steve Jobs is going to wring out whoever came up with this. It'd be interesting to see if Jobs will make note of this during his Macworld keynote.

[teckstud]

Apple never lies or misleads.

[teckstud]

Originally Posted by iReality85

People, it was false advertising on Apple's part, plain and simple. Go take marketing 101. As for comparing Apple's ad to other companies' "deceptive" ads, many of the examples people have tossed around are based on perception and are suggestive. What's different about Apple's ad is that they spelled it out. They said it. There is nothing to suggest, it is absolute- "Twice as fast." So, why then can't we take Apple's ad at face valve, since they so blatently and literally "spelled it out" for us? This lawsuit is fair game.

But is it "Half the Price"?

[palegolas]

Well, this commercial for another phone doesn't come off as realistic either
http://www.youtube.com/watch?v=9u7_X_irAvQ
But then again, the same goes for, let me see, err.... just about 100% of all commercials?

[Pooch]

that's right wamu ... i said i'd pay my mortgage on time, but if you believed that then you're a fool! and it's ok for me to say that because, well, because it happens all the time.

i love apple.

i hold their stock.

and i hope this guy gets some relief; it'll be better for all of us.

[Wiggin]

Originally Posted by iReality85

People, it was false advertising on Apple's part, plain and simple. Go take marketing 101. As for comparing Apple's ad to other companies' "deceptive" ads, many of the examples people have tossed around are based on perception and are suggestive. What's different about Apple's ad is that they spelled it out. They said it. There is nothing to suggest, it is absolute- "Twice as fast." So, why then can't we take Apple's ad at face valve, since they so blatently and literally "spelled it out" for us? This lawsuit is fair game.

Yes, some of the example cited were based on perception and/or preference. But there are other ads that claim an absolute, measurable advantage (ie, our batteries last longer than the competition's). How about ATT's ad claiming fewest dropped calls, which in my experience is the most blatant advertising falsehood I've ever seen.

However, each of those claims can be backed up with hard evidence (usually in a controlled environment). So battery A might perform better than battery B in a flashlight, but B is better in a radio. Both companies could advertise that their battery outlasts the competition. And both would be right. ATT has fewest dropped call...but not in my city. USB 2.0 is faster than Firewire 400 (not the subject of advertising, but another example). Is the iPhone 3G capable of being twice as fast? Yes. Will is always be? No.

What about cars that advertise a certain MPG, but don't actually achieve that because of the way normal drivers drive or because you are driving up a mountain? What about my Thinkpad that advertises a 4 hour battery life, but only if you turn down the screen brightness and don't to anything but stare at the screen? All quantifiable facts. All true under the right conditions. But not all always true.

Marketing 101 is the survey class. Welcome to Marketing 201.

BTW: I'm all for clamping down on dubious marketing claims. But lets start with the get rich quick infomercials and the sweepstakes mailings claiming that I've "alrady won".

[JavaMan]

Originally Posted by filburt

I am not aware of any web sites (that are not obscure anyway) that still use Java. Heck, not even Java's website uses Java.

This page uses javascript.....

[Adjei]

Originally Posted by teckstud

But is it "Half the Price"?

Of course it's half the price, when I go and buy the phone at the store, it's 200 dollars, before it was 400.

[Adjei]

This is the problem we have today, everybody is trying to make a buck and feel they should sue in order to get their way. The iphone is twice the price, 200 dollars vs 400 dollars, and 3g is twice as fast edge. Will it always be twice as fast? Not always, it depends on my location, if I'm in the middle of a forest, will it be twice as fast, probably not. Should I go and sue Apple because it's not twice as fast in a forest or I don't always get "twice as fast" speeds. Every advertisment on TV is not always 100 percent and anyone who doesn't realize that is just being naive, but that's the world we live, which is why we get these lawsuits.

[RichL]

That assertion was misleading, the ASA said, because the iPhone does not support Flash or Java, two proprietary technologies that sometimes prove integral in the display of certain web pages.

MP3 is proprietary too. Arguing against Flash on the basis that it's proprietary is stupid. It's all over the net whether it's an open standard or not.

Apple argues only a fool would believe its iPhone 3G ads

Only a fool would have voted for George W. Bush but look what happened...

[acslater017]

Originally Posted by iReality85

People, it was false advertising on Apple's part, plain and simple. Go take marketing 101. As for comparing Apple's ad to other companies' "deceptive" ads, many of the examples people have tossed around are based on perception and are suggestive. What's different about Apple's ad is that they spelled it out. They said it. There is nothing to suggest, it is absolute- "Twice as fast." So, why then can't we take Apple's ad at face valve, since they so blatently and literally "spelled it out" for us? This lawsuit is fair game.

Can you please post any research that indicates that 3G is not twice as fast? My iPhone 3G is about twice as fast as it is on EDGE, depending on reception. It's slower in bad spots, and actually faster than 2x in some spots. Performance depends on your location, just like every other wireless technology from FM radio to Wi-Fi.

And about the iPhone not having access to "the whole internet" or whatever - that's such rubbish. Of course it doesn't - it doesn't have FTP, Torrents, or anything like that either. What it DOES do is display 99% of HTML sites in their entirety, something that can't be said of other smartphones. That's like suing Lexus because their ad says it will take you anywhere, but it actually can't go up mountain trails, in the sand, etc.

[NasserAE]

Originally Posted by acslater017

Can you please post any research that indicates that 3G is not twice as fast? My iPhone 3G is about twice as fast as it is on EDGE, depending on reception. It's slower in bad spots, and actually faster than 2x in some spots. Performance depends on your location, just like every other wireless technology from FM radio to Wi-Fi.

And don't forget that the iPhone hardware is capable of more than twice the speed of EDGE and Apple is not providing data service.

[swisswuff]

the iphone kills the user through high data transfer costs. it comes cleverly configured and looks slick but it is not very fast. those of us that knew apple was going to screw people waited ... the others? they now have a phone with a lousy 2 mp camera that costs them a PREMIUM ... bwahahaha

[tmedia1]

Originally Posted by bavlondon2

No they dont. If yours stupid enough to watch the ad and then say mine doesnt do it as fast as that then you are just plain naieve.

No, YOU would have to be naive to believe you can make any claim you want in a tv ad. Apple (and many other companies) deserve to be punished for their misleading BS.

[TenoBell]

The difference being is that MP3 is not owned and controlled by one company. Flash is solely beholden to what Adobe dictates. MP3 isn't beholden to any one company.

Originally Posted by RichL

MP3 is proprietary too. Arguing against Flash on the basis that it's proprietary is stupid. It's all over the net whether it's an open standard or not.

[EsquireMac]

Sorry guys, this is more or less a boilerplate defense in a case like this. "Puffing" is a legitimate defense - if the elements are met. I'm not saying they are met or not. Apple is simply pleading this defense, along with a laundry list of other defenses so that it doesn't give up its ability to argue this defense later in trial.

The coverage of this issue makes it look like this is Apple's sole or most important response. It's actually just one of about a couple dozen defenses Apple is throwing out there.