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Ikon dismisses ‘disgraceful’ allegation, as Advangen presses case against ‘Gone With The Wind’ TV ad

Multiple allegations levelled against Ikon Communications over a 2015 marketing campaign are unfounded, contrived and, in one case, disgraceful, and should be dismissed, Sydney’s Supreme Court has heard.

In his closing submissions to Justice Ball, Ikon barrister Todd Alexis SC said the agency’s former client, Advangen, had failed to demonstrate any breach of contract or show that Ikon had not delivered an integrated campaign.

He said Advangen chief executive Maria Halasz, who was questioned for two days last week, was not a credible witness as her evidence “can’t sustain scrutiny”.

She did not raise major concerns with Ikon about the campaign until long after it had started and only then after shareholders of Advangen parent company Cellmid had voiced displeasure and when Ikon was demanding payment, he said.

Meanwhile, John Kelly SC, representing Advangen, closed his case by telling Justice Ball the agency had misled and deceived his client with inflated sales expectations, while a TV ad was more in keeping with a lavish production of Gone With The Wind than a promotion for a hair thinning remedy.

The closing submissions came during day eight of a legal battle in which Advangen 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.

Alexis told the court that Halasz had left responsibility for much of the campaign to her staff, and had accepted during her cross examination that they were “on board” with Ikon’s creative approach.

Far from disliking the work, Advangen was supportive and enthusiastic, he said, adding that a strategy to put “emotion over science” in the TV ad had been approved by Halasz.

He described the cross claim against Ikon as a “contrivance and recent invention”.

Maria Halasz

Addressing claims from Halasz that sales had got nowhere near the $750,000 target, Alexis said there was next-to-no documentary evidence to support the claim. In fact, both then Advangen GM Emma Chen and sales director Evan Rees had articulated to Ikon that sales were “going well”.

He noted that both Chen and Rees had not been called to give evidence.

“If ever there was an obvious witness it was the sales director,” he said. He concluded that calling Rees “would not have assisted the Advangen case”.

Continuing the sales theme, Alexis told Justice Ball that in an ASX announcement to the market in late October Halasz had said sales were improving. That, he said, put her in a dilemma. She was either telling the truth to the court or the market.

During her cross examination “she chose the latter”, he said.

Alexis told Justice Ball that he need “look no further” in questioning the veracity of her evidence than in her failure to share details of the sales increase with the court.

On the TV ad, Alexis turned to evidence given by expert witness Jane Caro who told the court the adverts for Evolis did not, in her opinion, meet the “standard” because they did not sufficiently explain what the product did, namely helping to prevent hair loss and hair thinning.

Specifically addressing the “standard”, Alexis said Advangen had failed to establish what exactly that was in relation to the advertising industry and how a TVC should go about explaining a product.

In the absence of an established standard “against which my client’s conduct is to be measured”, it is “impossible” to find against Ikon, he said.

“Ms Caro ultimately accepted that the question of how to explain the product was entirely subjective,” Alexis said. The evidence, he added, “rises no higher than Ms Caro saying ‘if I had been given the brief I would have done it differently’.”

It was, he said, a “fundamental flaw of the Advangen case”.

Alexis stressed to the court that the advert did, in any event, say Evolis helped to prevent hair loss.

Earlier in the hearing, it emerged Ikon had overcharged Advangen for its creative services, an error which neither party initially spotted, the court heard.

Alexis said Halasz was by now refusing to pay Ikon’s invoices and, after the error emerged, accused Ikon of fraud.

“That refusal to pay led to what we submit was a disgraceful, a disgraceful, allegation of fraud and dishonesty. She came to a position that because of the error with the creative service fee she had in someway been the subject of a dishonest concealment or some fraud.”

The allegations are wholly unsupported, he said.

The Ikon barrister also rejected that some elements of the campaign were late, as claimed by Advangen. He suggested the client had “misunderstood” what Ikon’s media plan meant in terms of the delivery of digital and social components of the marketing crusade.

He suggested it was “curious” that Advangen had failed to offer any “precision” over which elements of the campaign were delivered late.

Advangen counsel, John Kelly SC, told the court in his closing submissions that Ikon has misled his client over the amount of sales the agency said it would generate.

He said Ikon had suggested it could beat its clients sales goals by 7%, which turned out to be flawed and, ultimately, “couldn’t be trusted”. Halasz, he said, had signed the Media Buying Authority document based on the positive Ikon calculations.

Had she known the flawed nature of the calculation “she would not have signed the agreement”, Kelly said.

He also accused Ikon of misrepresenting the target audience which resulted in a 13% reduction in the number of people the campaign could reach.

The issue arose, he argued, from an initial suggestion from Ikon that the media buying would target women over 35 years of age, and would hit 1.825m people.

But that was later changed to a W40+ demographic. Kelly explained that was because there is no such thing as a W35+ trading demographic, a fact he said was confirmed by expert witness John Grono.

The smaller audience size would result in sales failing to hit targets, let alone exceeding them, Kelly said.

“The representation that the campaign would generate sales of at least $750,000…..the representation that Ikon would direct advertising to women aged 35+ plus, each of those propositions lacks a reasonable basis,” he said.

That established there was misleading and deceptive behaviour, he said.

“None of it is real,” he added.

Turning to the TV ad, he reiterated that it contained “pretty pictures” and “nice hair” but didn’t portray the real nature of the product. It therefore “fell short of the standard”, he said.

It “retreated too far” from the original script of “no more” hair loss, he added.

“We say there has been a breach of contract,” Kelly said, adding the ad was “useless”.

Asked by Justice Ball what he should make of Advangen’s approval of the advert, Kelly encouraged him to disregard it, arguing that the “client knows nothing about advertising”.

“It is easy to see how someone may get carried away by a beautiful advertisement,” he said, citing the cinematography and the “beautiful people running across the cliffs all contemplating diving into the ocean”.

“They might be shots apt for Gone With The Wind. The client might say ‘that’s beautiful, I like that’, but the client doesn’t know anything about what it takes to make an advertisement that works,” he told the court.

That was the job for advertising professionals, the barrister continued, adding that it was no defense to suggest the advert had initially been well received by Advangen.

Kelly said he found it “very surprising” that expert witness Colin Wilson-Brown had suggested that “pleasing the client” was a marker for quality, professional work.

There would no other profession where that would be the case, he said.

On the issue of the alleged lack of integration, Kelly said Ikon started late on the Evolis website and didn’t familiarise itself with the systems.

The case is due to conclude this morning.

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