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Toyota Loses a Marketing Lawsuit in Ruling That May Chill Advertiser Pranks

A California appeals court, ruling in a case in which Toyota (TM) and its ad agency, Saatchi & Saatchi, allegedly terrorized a woman into thinking she was being stalked by a criminal -- though it was actually a prank promoting the Matrix automobile -- has found that pranks in general may constitute a type of contract fraud.

The case is unusual but could chill any type of ad campaign in which consumers are briefly duped before the advertiser reveals the truth. It's a common tactic among advertisers who often secretly film consumers choosing their brands over others in bogus situations before revealing their ruse.

The Toyota/Saatchi case is a particularly extreme example of the oeuvre. In the case, Amber Duick claims she was invited by a friend to sign up for "personality test" and a five day "experience." Although she signed a consent agreement, it did not explicitly say she was about to be duped.

Over the next five days she received a series of texts, emails and phone calls from "Sebastian Bowler." Bowler (pictured) seemed to know a lot about her and informed her he was on the run from the police after damaging a hotel room. She also got an email from someone purporting to be the hotel owner, demanding damages. The information had been supplied by the friend who invited her, and only on the last day of the prank was Duick directed to a web page explaining the Matrix "Your Other You" experience.

Duick is demanding $10 million in damages for distress. She won't get anything like that, of course, if the case ever gets to trial.

But the legal fallout could chill advertisers who want to trick consumers in demonstrations of their product Conagra (CAG) recently suffered a PR misfire after it invited several food bloggers to a meal prepared by celebrity chef George Duran at "an intimate Italian restaurant" in Brooklyn, only to reveal at the end they were eating Marie Callender's frozen lasagna. Rather than taking it in good sport, the bloggers wrote angry tirades, calling the scheme a "sham" and a "bait-and-switch." (Apparently, they were really, really hoping for a Duran meal!)

Similarly, Procter & Gamble (PG) is currently running a campaign for Febreze in which consumers are led blindfold into a series of rank, garbage filled interiors and asked to describe what they smell. Because of the fabric freshener, everything smells like roses -- until their blindfolds are lifted:

And Domino's (DPZ) has promoted its turnaround by rooking a cynical focus group into a trailer that turns out to be parked in a picturesque tomato field that supplies the company with its natural ingredients.:

A more aggressive execution shows Domino's marketing team literally stalking three "holdouts" who refuse to try the new pizza:

In the Toyota case, the court ruled that:

... the putative contract is void on account of fraud in the inception ... [because] a reasonable reader in Duick's position would not have known that she was signing up to be the target of a prank.
It's a humbug of a ruling because, naturally, you cannot play a prank on someone if you first inform them they are about to be the victim of a prank. And that will likely lead to some frustrating conversations between ad agencies with really entertaining ideas and the lawyers of their clients' compliance departments, who won't want the liability.

Bonus points: If you spotted that Sebastian Bowler's MySpace page still exists, showing photos of him and his pitbull.


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