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Apple has hit back at claims it misled Australian buyers of "the new iPad" with the unusual defense that Australia's 3G networks are so fast they are in fact 4G in all but name.

Cupertino has been taken to court by the Australian Competition and Consumer Commission (ACCC) after is began an investigation into complaints from Australian customers that the latest fondleslab won’t work with the local 4G network offered by Telestra, operating at1800MHz.

Instead it uses the 2100MHz spectrum used by providers using HSPA+, which Apple claims is 4G in all but name, something the local telecommunications company have seemingly ignored and continue to brand as 3G.

"The iPad with WiFi + 4G is a device which performs in accordance with the descriptor '4G' in terms of data transfer speed," it said in a court filing, The Australian reports.

"The descriptor '4G' ... conveys to consumers in Australia that the iPad with WiFi + 4G will deliver a superior level of service in terms of data transfer speed (consistent with accepted industry and regulatory use of that term), and not that the iPad with WiFi + 4G is compatible with any particular network technology promoted by a particular mobile service provider in Australia."

Talks with the ACCC have had little success and Apple now seems ready to fight the case in court. It has already offered a full refund to Australian buyers and is using updated point of sale information to clarify the matter, but this isn’t enough for the ACCC.

The case has highlighted the confusion caused by the International Telecommunications Union when it altered its guidance on what actually constitutes 4G in the first place. When it set the desired standard a number of technologies were being developed to reach the 4G mark, with the two most prominent being LTE and WiMax.

Engineering is no match for marketing

Neither was technically fast enough to be called 4G under the original ITU standard of 100Mb/sec downloads in motion, and 1Gb/sec when stationary. Mobile companies weren't happy with that, and proceeded to brand the systems as 4G anyway. So in December 2010 the ITU caved in and designated them both as 4G, and said that "other evolved 3G technologies" could also be included.

It's this last statement that appears to form the basis of Apple's argument. Certainly in the US a whole range of slightly faster than 3G services are now called 4G, whereas the EU tends to be stricter in its terminology. Quite what the Australian courts will decide on the issue remains to be seen, but the decision could cause a lot of hasty rebranding down under. ®

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