Day 050 - 10 Nov 94 - Page 14
1 the toy was shown and the sound was made would or did
2 confuse children, then they would rule against it. They
3 would say: "You must replace that sound with some other
4 sound."
5
6 As I mentioned before, not only is the script pre-cleared,
7 in which case the script would say "sound of racing car",
8 but the actual finished film, including the sound, has to
9 be pre-cleared. So it is at that stage that they would
10 normally say: "Hang on, I think that might confuse the
11 child."
12
13 So the danger of confusion is eliminated in the vast
14 majority of cases, or is judged, before the commercial goes
15 on air. Then if there was a complaint to the ITC, they
16 would look at it again and see whether they agreed that the
17 sound was confusing to a child.
18
19 Q. You see ---
20 A. Forgive me for adding -----
21
22 MR. MORRIS: -- if there is a particular -----
23
24 MR. JUSTICE BELL: No. He wants to add something. Then you ask
25 your question.
26
27 THE WITNESS: The view that the ITC normally takes is, they take
28 the film as a whole -- the picture, the words, the sound --
29 they take all these elements into account; and it is
30 unlikely that a child would be confused by seeing a toy and
31 believing that it was, in fact, a real life car. That is
32 what the Code is trying to prevent.
33
34 MR. MORRIS: So you are saying that it is okay to create an
35 impression? So when it says: "There must be no confusion
36 as to the noise produced by the toy, e.g. a toy racing car,
37 and its real life counterpart" -----
38
39 MR. JUSTICE BELL: It is quite clear, is it not, Mr. Morris?
40 You can argue about what impression the advertisement
41 makes, but it is not just a question of whether it is
42 obvious from the noise, if you shut your eyes, that it is a
43 little boy or a series of little boys making raspberry
44 noises or it is a real racing car; you have to look at the
45 toy. If it is extremely realistic and there may be some
46 doubt about scale, there might be confusion in certain
47 circumstances; if it is obvious that it is small, very
48 plastic, with wheels which are not particularly in
49 proportion to the body of the vehicle, then one might take
50 a different view, that, however realistic the noise is, it
51 certainly is not being made by that.
52
53 It is a matter to look at the ad and judge it. "There must
54 be no confusion as to the noise produced by the toy, e.g. a
55 toy racing car, and its real life counterpart." Surely,
56 you have to look at the whole ad. That is all Mr. Miles is
57 saying.
58
59 Quite frankly, I do not think this is a question for
60 construction with the witness, as to the appropriate
