Apple: Our advertising is clearly bull@#$%. Clearly.

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re: Apple: Our advertising is clearly bull@#$%. Clearly.

DRWAM — Thu, 04 Dec 2008 00:10:00 GMT

I did not see the new disclaimer about speed, but I think that a reasonable or average person could easily believe that the iPhone was as fast as advertised. The old disclaimer was just not enough as posted many times, that the shown speed were never achievable. Damage would be the cost of the phone and early termination, but I can't see much more. It could be less if someone was already a customer of ATT and stated that they were not going to switch providers.

OT, keep it up tayme. I'll save a pair of speedo's for us;) Also, decreasing fats would result in less calories in the same volume of food. Still my mom lost weight better when she actually weighed her food portions. Before kids, my wife and I would cook just enough to eat. Therefore, we would not over-eat. 3 kids later and she now has to use the treadmill, since there's tons of food and even more junk. God it's good to be an ectomorph!

re: Apple: Our advertising is clearly bull@#$%. Clearly.

mikegalos@msn.com — Thu, 04 Dec 2008 00:01:36 GMT

Again, IANAL so please correct me where I'm wrong but...

Since the plaintiff purchased both the device and contract based at least partly on the ad, the entire contract for the device and services could be considered at issue since the demonstrated performance was an implied part of the contract that was false. Since Apple did not attempt to meet the terms and in fact has shown that they had no intention of meeting the terms of the contract at the time of the offer the contract could be considered fraudulant. The contract thus has monetary value as does the plaintiff's time used in selecting a replacement contract to replace the fraudulent one.

Since value passed in both directions, the contract is in force and the terms subject to enforcement.

Signing a contract with intent to not provide the services that are a part of that contract is a clear violation of contract law and thus there are additional damages that could be levied by the court.

Again, IANAL but I'd guess that this is the monetary basis of the plaintiff's claim against Apple.

re: Apple: Our advertising is clearly bull@#$%. Clearly.

tayme — Wed, 03 Dec 2008 23:58:25 GMT

@DRWAM - Actually, I am just about to go hit the gym now...45 minutes on an elliptical and a couple of rounds on the circuit machines about 5 times a week now for a few months...Its working, but I do tend to like food...and I have no self control. I need to either increase the number of calories burned or decrease what I eat...I think I am right up there with Michael Phelps on caloric intake!!!

-tayme

re: Apple: Our advertising is clearly bull@#$%. Clearly.

mikegalos@msn.com — Wed, 03 Dec 2008 23:49:44 GMT

joe-dokes

The problem is that Apple demonstrated speed in an ad that featured improved speed as the primary claim of the ad. That's where most of the analogies break down.

If the Porsche ad you talked about, for example, showed an average person driving a Boxster lapping Monaco faster than Mario Andretti in a Lotus 79 (to use a non-current example) but talked about race bred engineering it would be OK since the demonstration does not reflect the claim being made. If that same ad talked about race level performance, it would be deceptive since the demonstration could reasonably be said to validate the claim being made since it was a demonstration of race level performance.

But IANAL

re: Apple: Our advertising is clearly bull@#$%. Clearly.

joe-dokes — Wed, 03 Dec 2008 23:32:46 GMT

Lawyer speak time,

The reality is that in the legal system there is a concept of a "Reasonable Man" or today "Reasonable Person." The legal dates back to the late 1800s and became one of the basic ideas in legal formalism.

The idea is how would a "reasonable person" react under certain circumstances? For example, if you are being tried for murder and are using the self defense as your legal defense, you will be held to the actions of a "reasonable person." That is, would a reasonable person under similar circumstances behave in a similar manner? If the answer is in the affirmative than you should be acquitted, if the answer is that you did not act in a manner that was reasonable, than you should be convicted.

So Apple's defense MUST be that a reasonable person would accurately interpret the ad as being a optimistic in the performance of the car. For example, VW had a commercial a few years ago showing one of their Passat's driving insanely around town, making jumps and doing amazing stunts, would a "reasonable man" believe that their Passat could do such things without being damaged?

Thus, the criticism of the lawyers use of reasonable man is just wrong, You could argue, that the ad was wrong and it misrepresented the product in which case Apple's lawyers side would lose.

As for whether Apple's ad was deceptive, I would first argue that ALL advertising is to some degree deceptive. Beer doesn't make me more attractive. Axe body spray is NOT going to make women chase me down the street. If I buy a Porsche I am not suddenly going to become a F-1 driver.

On the one hand, I can see why Apple would speed up the phone, because, after all they are trying to demonstrate what the phone can do, but only have 30 seconds to show the ad. However since the ad stresses the speed of the phone, and the discrepancy is so great, I would argue that at the least Apple should pull the ad, and end some of this negative publicity.

As far as settling the lawsuit, I think the real difficulty is for the plaintiffs to actually show some monetary harm.

Regards

Joe Dokes

re: Apple: Our advertising is clearly bull@#$%. Clearly.

DRWAM — Wed, 03 Dec 2008 23:25:09 GMT

I never thought of that [you beat me to it]. But I would rather search with Windows 7 beta on my 2nd partition on my $400 Vista laptop. So when you hear of a public beta, please, pretty please with sugar, send me a link. We just ordered a $649 Vista laptop today for one of the docs. He was too cheap to spring another $50 for the 64 bit version model.

re: Apple: Our advertising is clearly bull@#$%. Clearly.

mikegalos@msn.com — Wed, 03 Dec 2008 23:06:06 GMT

DRWAM

I doubt it but I'm not sure since the subject of delivery to New Jersey, not surprisingly, never came up.

Maybe you could look them up on maps.live.com using your $400 Vista laptop and ask!

re: Apple: Our advertising is clearly bull@#$%. Clearly.

DRWAM — Wed, 03 Dec 2008 23:01:00 GMT

Mike, do they deliver to New Jersey?

re: Apple: Our advertising is clearly bull@#$%. Clearly.

mikegalos@msn.com — Wed, 03 Dec 2008 22:35:53 GMT

whiplash

As I said, if you get to Seattle, I'd advise it.

re: Apple: Our advertising is clearly bull@#$%. Clearly.

whiplash55 — Wed, 03 Dec 2008 22:29:43 GMT

@mike

Thanks for the tip Mike, I'm from California (Cupertino actually) and I'm going to tell EVERYONE to head up there and check it out!

re: Apple: Our advertising is clearly bull@#$%. Clearly.

mikegalos@msn.com — Wed, 03 Dec 2008 22:03:34 GMT

Oh, and in case anybody gets to Seattle and is looking for Ethiopian food, I'd recommend Assimba on East Cherry Street. Great Ethiopian food and good prices. (We got told about it by one of my wife's former coworkers from Addis Ababa who used to eat there whenever he got homesick.)

re: Apple: Our advertising is clearly bull@#$%. Clearly.

mikegalos@msn.com — Wed, 03 Dec 2008 21:49:14 GMT

tayme,

I think he's telling us we can stop dieting which works for me since I picked up some great Ethiopian take out on the way home from the conference...

re: Apple: Our advertising is clearly bull@#$%. Clearly.

DRWAM — Wed, 03 Dec 2008 21:40:51 GMT

tayme, it's one workout at a time. You don't need a years work in one day. Let the goal be small increments.

re: Apple: Our advertising is clearly bull@#$%. Clearly.

whiplash55 — Wed, 03 Dec 2008 21:32:03 GMT

You're a small man Paul Thurrott. Mike Galos, ditto.

@Ocean

You and robertsjoe kill me, why the hell do you keep reading if it annoys you so much? Aren't there thousands of Mac centric sites you can all do a group hug at? Really you guys have issues, let me guess your mommy always belittled your daddy in public and now you've grown up (sort of) an angry and bitter adult. Apple fans should be ecstatic over Apples recent successes, but instead you torture yourself coming to winsupersite blog and whine and snivel or make stupid snarky and inane comments. I'm embarrassed for you. You guys would have done well in Germany in the 1940's or in the former Soviet Union in the 30s. Anyone stepping out line or questioning correct dogma needs to be disappeared or at least discredited. Heil Steve!