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

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