Experts divided on Ikon TV ad as historic court case rumbles on

Television ads that sit at the heart of a historic court battle have been picked over by advertising experts as Ikon Communications continues to fight allegations it botched a marketing campaign for a client.

Four industry authorities were questioned in Sydney’s Supreme Court about the merits of TV ads for hair thinning brand Evolis, in addition to the wider integrated nature of the campaign.

One, Jane Caro, said Ikon’s creative approach – overseen by executive creative director Rob Martin Murphy – did not adequately explain the product while two others, John Grono and Colin Wilson-Brown, applauded the ads.

A fourth expert, James Macnamara, a professor of public communications at Sydney’s University of Technology, was questioned exclusively on the campaign’s social and digital integration, which hair treatment brand Advangen claims was all-but absent.

Advangen, owned by ASX-listed Cellmid, blames Ikon for cobbling together a sub-standard campaign to promote Evolis, including TV spots it claims completely missed the mark.

Ikon is suing its former client for failing to pay its bills.


It is the first time an advertising agency’s duty of care has been challenged through the courts.

During the proceedings, which occasionally resembled a panel discussion, Caro suggested Ikon should have gone back to the drawing board as soon as the first script for the advert had been rejected by regulators.

Earlier in the case, the court heard that the Australian Self Medication Industry (ASMI), which oversees the way therapeutic goods are advertised, rejected the use of the phrase “no more” hair loss.

“In my mind this changed everything,” Caro said.

Rather than continue with the previous strategy, Caro suggested it should have been reconsidered.

Jane Caro: Unconvinced the TV advert got the message across

In exchanges where Martin Murphy’s work was dissected, Caro told the court that despite regulatory setbacks, it remains imperative for creatives to overcome regulatory hurdles and find a way to communicate what the product does.

“How do we do that in light of what we are not allowed to say? That is the sort of discussion and thinking that I think is basic to a creative person’s job,” she said. “How do I still communicate what this products does within the narrow parameters that I have been given?”

Ikon barrister Todd Alexis SC put it to Caro that Martin Murphy did exactly that, reworking the voice-over and complying with instructions from the client and regulator. It was clear therefore that his work “complied with the standard”, he said.

“He complied to the standard in terms of the process. I am still very concerned about the standard of the finished product,” Caro replied.

Caro acknowledged that following the regulator’s ruling, Martin Murphy was limited in what the ad could verbally articulate. But she said visuals could have been changed to better illustrate the benefits of the product.

She suggested the grassy cliff top – where the ads were shot – could instead have been exposed, but with grass growing back, to metaphorically demonstrate what happens to hair when using Evolis. She admitted she did not know if that would have satisfied regulators.

Responding to Alexis’s remarks that the use of alternative words in the advert would have been difficult in light of the regulator’s objections, Caro said: “I have learned that sometimes you can talk about the problem and not the solution. That way you can flag what the product does while not contravening the rules of the regulator. You focus on problems rather than product claims.”

She conceded that the commercials did mention that a formula contained in the product, FGF5, may reduce hair loss.

Colin Wilson-Brown

Another expert, Colin Wilson-Brown, a former chief executive of FCB and owner of consultancy The Clinic for Agency Assessments, said he thought the ad made it clear the product was designed to help minimise hair loss.

Questioned by Advangen counsel John Kelly, industry stalwart and owner of GAP Research John Grono said the message of promoting hair health and the “underlying emotion” of the creative were in line with instructions from Advangen. He described it as “powerful”.

Caro disagreed, arguing that “hair health” was an undefined term that could mean a variety of issues, and not necessarily hair thinning. Clients pay creative agencies to show the benefits of a product with clarity, while using emotion, she said.

“But if you are not underpinning something emotional that is clear to the consumer then emotion is not enough,” she told the court. “That is the skill of the advertising creatives who get the rational and emotional work to communicate the benefit of the product.”

Turning to the use of the word “formula”, Alexis described its use in the context of the ad as “creative brilliance” which clearly articulated the science behind the Evolis product.

“I am not sure I would go so far as to say it was creative genius, but it’s a nod [towards science],” Caro said.

Put to her that the ad also included the words “may reduce hair loss” with a tagline “Long Live Hair”, Alexis suggested it was clear it communicated what the product was.

Caro remained unconvinced, insisting the spoken word in a visual channel like TV can often be lost.

John Grono described the ad as emotional and powerful

Later, proceedings turned to the integrated nature of the campaign, with Grono, Wilson-Brown and Macnamara appearing in the witness stand together discussing how TV, digital and social executions work together.

Macnamara said all three had argued “long and hard” about where fault lay in a delay to the launch of the Evolis website. Macnamara said he believed it was Ikon’s responsibility to get the content produced and online while Grono and Wilson-Brown argued the client controlled access to the website.

“I had to accept after debate…..there were some problems with access, and technically, with the site,” Macnamara said. “We came to the conclusion there was shared responsibility and shared blame in relation to the Evolis website.”

Wilson-Brown said he did not see how Ikon could be entirely to blame if staff could not get access to the website. Grono added that the only way Ikon could have met its deadline was to have taken over the Evolis servers “which is totally illegal”.

Alexis asked Macnamara to accept several “assumptions” relating to when elements of the campaign were delivered, before asking if there was anything to suggest that Ikon did not meet its contractual obligations.

Despite accepting that Advangen may have been partially at fault, he said: “I still have the opinion that…..the overall responsibility of an agency is to make a campaign happen and sometimes that means finding other ways to do things.”

Alexis then painted a picture, again using “assumptions”, where blogs on third party websites were delivered largely on time while user trials were also on schedule as were influencer posts.

The case is expected to conclude today.


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