B.C. court sides with Mobilicity in Telus ad suit

The Canadian Press

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Television ads by small wireless competitor Mobilicity will stay on the air after a court injunction requested by Telus was denied Wednesday by the B.C. Supreme Court.

Mobilicity’s ads focus on no cellphone contracts, unlimited data and “what you see is what you get,” a marketing strategy it has always used since it launched in 2010, the court said.

“Telus is neither identified nor singled out,” Justice Christopher Grauer wrote in his decision to deny the injunction.

“Finally, it follows further from my finding that Telus lacks a strong case” and that by the time Telus’s claim is tried, the Christmas buying season will be long past, the judge said.

He noted that if the injunction were granted and Mobilicity was ultimately successful, “it will have missed the opportunity the 2012 season presents to use its existing and well-established marketing strategy to make competitive gains.”

Mobilicity offers no-contract cellphone service.

Mobilicity’s president and chief operating officer, Stewart Lyons, said it was an “intimidation tactic” by Telus to try to stop its no-contract advertising campaign, which began in late November and also included print and Internet campaigns.

“This is a typical example of an entrenched oligopoly trying to flex their muscles to try to intimidate a smaller competitor,” Lyons said.

“There wasn’t much of a claim to stop what we’re trying to do. So we’re pleased and we will continue the fight in the name of value and consumer choice.”

Telus had accused Mobilicity of making false claims in general about other carriers about placing limits on unlimited calling plans by restricting them to evenings and weekends. Telus has said it has no such restrictions.

Telus spokesman Shawn Hall said the Vancouver telecom isn’t letting the matter drop.

Failure to get the interim injunction “does not affect our pursuit of a full hearing,” even though the ad campaign likely will be over by the time the matter is back in the B.C. Supreme Court, he said.

Hall said the court noted that Mobilicity’s ad could be interpreted as misleading, but an interim order to stop the ads immediately couldn’t be made on first impressions in a short court proceeding.

In the judgment, Grauer said it isn’t clear to him that Mobilicity is saying that its competitors make deceptive offers but is warning that their terms and conditions are often confusing and that it pays to read the fine print.

“That caution, as we shall see, is as aptly directed at Mobilicity as it is at any of its competitors,” Grauer said.

Hall said Telus believes that Mobilicity’s unlimited data offer is restricted by throttling and is a misleading claim.

And even though Telus isn’t singled out in the ads, all carriers are competing for customers.

“In our view, Mobilicity’s ad makes numerous false claims that misinform potential customers both about what other carriers offer as well as what Mobilicity offers, and we couldn’t let that go unchallenged in such a hotly competitive market.”

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