Day 025 - 16 Sep 94 - Page 26
1 advertisement?
2 A. The first problem I have with your characterisation
3 is, as I told you a moment ago, I am not testifying to
4 their desire to gain an advantage in the marketplace with
5 respect to this advertisement, so that is one of the
6 reasons I did not agree with your question.
7
8 The decision under American law, under Texas law, is
9 twofold: Was the action taken intentional and did it
10 deceive? Not necessarily that the intention, that
11 McDonald's acted with a definite intent to deceive to gain
12 advantage in the marketplace, as you stated. The law is
13 violated if the act is intentional and if it deceives.
14 The reason for looking at the consumer perception of an
15 advertisement is largely so that we do not have to, in
16 every instance, get into the question of whether the
17 action was done knowingly or intentionally. Here, our
18 conclusion was that it had been, given our prior
19 discussions with McDonald's. Certainly the other evidence
20 I have heard before this court, it does not cause me to
21 change my mind on that.
22
23 Q. Does the word "intention" in American law -- I do not want
24 to get involved in a long academic discussion -- but does
25 the word "intention" in American law vary according to the
26 context, the legal context, in which it is used?
27 A. Oh, certainly.
28
29 Q. As it does in this country. So when you use intention in
30 relation to matters of this kind, do you distinguish that
31 from what we call the kind of intention which is required
32 for all but an absolute offence in the criminal law?
33 A. I cannot distinguish it that way, as I think I said
34 earlier. I am not a criminal lawyer, and I could not tell
35 you that.
36
37 Q. Let my try plain English. It is not your fault. It is my
38 fault. Does this sort of infringement, if I may call it
39 that, alleged infringement, require proof of a dishonest
40 mind or not?
41 A. It does not. One would certainly seek to prove it
42 because that would increase the amount of penalties,
43 sanctions or liquidated or, rather, exemplary damages that
44 would be assessed against the offender. But that is more
45 of a trial tactic to up the ante in the event of a win
46 than a legal necessity.
47
48 Q. So you can succeed in gaining a judgment against an
49 advertiser who, though perfectly honest, has deliberately
50 used some words, or pictures, which have a misleading
51 effect judged as an objective consequence of what he
52 wrote. Is that right?
53 A. Yes. You can obtain a judgment for false advertising
54 without any scienter whatsoever, without any proof that
55 the advertisement was placed intentionally or knowingly.
56
57 MR. JUSTICE BELL: So long as he has put the words on the page,
58 if they are judged to be deceptive, in fact, that is
59 enough, is it?
60 A. Yes, your Lordship. The truth is that if you could go
