77 As is evident from the foregoing, the difference between the parties in relation to the exterior temperature reduction representation is whether the flyers and standees conveyed that the representation that the application of Dulux heat reflect paint "will", rather than "can", reduce the surface temperature of the exterior walls of a house by up to 15°C.
78 The applicant submitted that when each of the documents comprising the promotional material was considered as a whole, the alleged exterior temperature reduction representation was made. The applicant contended that the words on the first page of each document would influence the mind of the reader. The "first and most prominent claim", said the applicant, was conveyed by the headline statement: "Reflects heat to keep your home cooler". This statement was followed by the words: "Revolutionary technology that reflects radiant heat, lowering the surface temperature of your home" which is then followed by words on the image of a blue arrow that state: "up to 15 degrees cooler" (15 degree cooler arrow). The applicant drew particular attention to the use of the words "your home" in two of the statements and said that a consumer would be influenced by the use of those two words to understand that he or she would experience the benefit of the represented attributes of the paint if he or she used the paint to paint the walls of his or her home, and not that the represented attributes were abstract and only capable of achievement in tests or studies.
79 Further, the applicant contended that the representations conveyed by the express words also had to be considered in the context of the impact of the room comparison image which would strongly influence the mind of a consumer.
80 The applicant contended that it was unlikely that a consumer would interpret the promotional material as representing that the application of the Dulux heat reflect paint, rather than standard paint, may not yield any benefit to the particular consumer.
81 The respondent contended that the words "up to" in the phrase "up to 15 degrees cooler" (which forms part of the 15 degree cooler arrow), when read by consumers, would indicate, in and of themselves, that the extent of any exterior surface temperature reduction would not be 15°C cooler in every case. The respondent went on to contend that those words were wide enough to convey to a consumer the prospect that the application of the Dulux heat reflect paint, rather than standard paint, may yield no surface temperature reduction at all.
82 The respondent also drew attention to the ^ symbol adjacent to the word "cooler" in the phrase "up to 15 degrees cooler" and its associated fine print which stated:
Surface temperature reduction varies depending on the colour chosen, the substrate and weather conditions. See can for details.
83 The associated fine print is on the reverse side of the promotional flyer to that of the ^ symbol. However, the fine print associated with the 15 degree cooler arrow in the standee, is at the bottom of the same page of the standee. The respondent contended that the express reference in the fine print to the fact that the surface temperature reduction "varies" together with the presence of the words "up to" in the 15 degree cooler arrow were "as a matter of both language and logic", inconsistent with the applicant's exterior temperature reduction representation contention.
84 The applicant took issue with the adequacy of the 15 degree cooler arrow ^ symbol and its associated small print as a means of qualifying the "up to 15 degrees cooler" statement and the other elements of the promotional material. The applicant contended that the fine print was in very small font and on the reverse side of the flyer. Therefore, it was unlikely that anyone other than a particularly attentive consumer would observe the symbol, turn the page and read the fine print. The fine print was, therefore, said the applicant, an inadequate means of overcoming the powerful impression made by the other elements of the promotional material.
85 In any event, said the applicant, the use of the words "up to" in the phrase "up to 15 degrees cooler" when read with the content of the associated small print did not prevent a representation being conveyed that the application of the paint "will" yield a benefit.
86 At issue between the parties in relation to the applicant's contention that the interior temperature reduction representation was made, is whether the promotional material conveys a representation that the application of the Dulux heat reflect paint rather than standard paint, "can and will significantly reduce the interior temperature of the house", rather than, as the respondent contends, "can and will reduce the interior temperature of the house".
87 The applicant contended that notwithstanding the absence of the word "significantly" in the text of the statements comprising the promotional material, the impression that would be conveyed to a consumer was that the application of the Dulux heat reflect paint, rather than standard paint, would significantly reduce the interior temperature of the house. The relevant inquiry, according to the applicant, is whether the promotional material conveys a sense of the extent of interior temperature reduction that would be achieved or whether a consumer would appreciate that only an insignificant reduction in interior temperature would be achieved.
88 In this regard, said the applicant, it was important to appreciate that the concern of a consumer purchasing the Dulux heat reflect paint would be the prospect that the use of the paint would lead to the reduction of the interior temperature of his or her home. It would be difficult, said the applicant, to see any meaningful benefit to a consumer in a reduction in exterior surface temperature that did not flow on to an interior temperature reduction. Accordingly, the applicant contended that the mind of the consumer would be focused on looking for a representation as to the effect of the use of the heat reflect paint on the interior temperature of his or her home.
89 The applicant submitted that several aspects of the promotional material contributed to conveying the representation that the reduction in the surface temperature of the exterior wall would lead to a significant reduction in the interior temperature of the house.
90 The applicant drew particular attention to the powerful impact of the graphic comparison between the interior temperature of the two rooms depicted in the room comparison image (see para 29(c) of the statement of claim). The applicant contended that the combination of the text and the powerful impact of the room comparison image would leave the reader with the clear impression that the use of the Dulux heat reflect paint would make the inside of his or her home significantly cooler. Accordingly, contended the applicant, a consumer viewing the promotional material would understand the respondent to be representing that should he or she apply the Dulux heat reflect paint to an exterior wall, he or she would experience a significant reduction in the interior temperature of the house.
91 The respondent accepted that by reason of the words and images in the promotional material, a representation was made that applying the Dulux heat reflect paint to the exterior walls of a house can and will reduce the interior temperature of that house. However, the respondent contended that the promotional material did not contain any quantitative statements about the interior temperature reduction that may be achieved nor any reference to "significant" or "significantly".
92 The respondent also emphasised the interrelated nature between the exterior and interior temperature reduction representations. According to the respondent, the exterior temperature reduction representation (contended for by the applicant) embraced the prospect that the exterior temperature reduction may be as low as 1°C or as high as 15°C. Thus, said the respondent, it did not follow that a reduction in the exterior surface temperature would translate into a "significant" reduction in the interior temperature of the house. A consumer, said the respondent, would know that if there was only a minimal exterior surface temperature reduction, it could not possibly translate into a significant interior temperature reduction.
93 It is first necessary to identify the class of consumers to whom the representations in the promotional material were addressed and the attributes of an ordinary or reasonable member of that class.
94 In my view, the representations were addressed to a consumer who may be thinking of painting the walls of his or her home at some time in the future, but not to that class of consumers who were committed to undertaking that exercise, and were contemplating the type of paint to use. An ordinary or reasonable member of the former class of consumers would, in my view, not be as cautious as an ordinary or reasonable member of the latter class of consumers. An ordinary or reasonable consumer would, therefore, view the flyer and standee without taking the same degree of care to scrutinise or analyse the contents of the documents, as would an ordinary or reasonable member of the latter class.
95 There is, in my view, an inextricable relationship between the content of the exterior and interior temperature reduction representations. Because of the interdependent relationship between the content of the two representations, it is, in my view, necessary to consider each of the documents comprising the heat reflect promotional material as a whole in order to determine whether an ordinary or reasonable consumer would have understood either or both of the representations, contended for by the applicant, to have been made.
96 I consider, first, the contention that the exterior temperature reduction representation was made. In my view, an ordinary or reasonable consumer would regard the promotional material as conveying the representation that the application of the Dulux heat reflect paint rather than standard paint, to an exterior wall could and would result in the reduction of the surface temperature of that wall by up to 15°C cooler. In other words, I accept the contention made by the applicant that by publishing the documents comprising the heat reflect promotional material, Dulux made the exterior temperature reduction representation.
97 I have come to that conclusion for the following reasons. First, as I have said, the content or tenor of the representation conveyed is to be derived from a consideration of each of the flyer and standee as a whole. In this regard, I accept the applicant's contention that the interest of an ordinary or reasonable consumer would be with the effect of using the heat reflect paint on the interior temperature of the house, and that an ordinary or reasonable consumer would not be particularly interested in a paint whose virtue was to reduce the exterior surface temperature of a wall if that did not translate into the tangible benefit of a cooler interior room temperature.
98 In my view, therefore, an ordinary or reasonable consumer reading each of the documents comprising the promotional material, would be influenced, not only by the headline statements which referred to lowering the surface temperature of "your home" and the 15 degree cooler arrow, but also by the other words and images relied on by the applicant which linked the reduced surface temperature of the exterior wall with a cooler interior room temperature.
99 In this regard, it is significant to note the vivid contrast depicted between the two rooms in the room comparison image. The wall painted with standard paint is depicted as not deflecting any of the three orange/red heat arrows with the consequence that the heat represented by the three orange/red heat arrows is transmitted into the interior of the house. By contrast, the picture of the wall painted with the Dulux heat reflect paint is depicted as being totally effective in deflecting all three orange/red heat arrows with the result that no orange/red heat arrows find their way into the house. In addition, the colour blue is used to depict the cool interior temperature and tranquil atmosphere of the house. By contrast, the orange/red colours of the heat arrows which have penetrated into the other room of the house, suggest a hot and uncomfortable room.
100 In my view, the room comparison image would be a powerful contributory factor in influencing an ordinary or reasonable consumer viewing each of the flyer and standee, to conclude that the words and images in each document conveyed the representation that the application of the Dulux heat reflect paint, rather than standard paint, to an exterior wall, would (rather than "may") be effective in delivering a tangible benefit by reducing the exterior surface temperature of the wall by up to 15°C.
101 The respondent contended that there were, in particular, two aspects of the content of the documents which defeated the applicant's contention. The first was the use of the word "may" in the sentence: "Standard paint absorbs radiated heat from the sun which may transfer to the inside of your home" adjacent to the image of the room whose exterior wall is painted with standard paint. The second was the presence of the ^ symbol next to the words "up to 15 degrees cooler" and the related small print, which said the respondent, qualified the impact of the room comparison image itself and the other statements relied on by the applicant.
102 I do not accept that contention.
103 First, the presence of the word "may", in that sentence, does not, in the context in which it appears, do sufficient work to convey the message contended for by the respondent, namely, that the benefit portrayed in the room comparison image, may not occur, and that there may well be no benefit at all in using Dulux heat reflect paint, rather than standard paint. In light of the power of the message conveyed by the room comparison image and the other headline statements, the use of the word "may" in that sentence, is an inadequate means of conveying the qualified message contended for by the respondent. The capability of the word "may" to convey that message is comprehensively undermined by the room comparison image itself which depicts a very different scenario, namely, an emphatic benefit accruing to the consumer from using Dulux heat reflect paint, rather than standard paint.
104 Secondly, I do not accept that the content of the fine print which is associated with the symbol ^ adjacent to the words "up to 15 degrees cooler" would lead an ordinary or reasonable consumer to understand that the application of the Dulux heat reflect paint may not lead to any reduction in the exterior surface temperature of the wall painted with that paint rather than standard paint. This is because, in my view, an ordinary or reasonable consumer would understand that it is implicit in the use of the words "up to" in the phrase "up to 15 degrees cooler" that there would be some reduction in the exterior surface temperature of the wall and that the extent of that reduction up to the limit of 15°C would vary depending upon the colour chosen, the substrate and the weather conditions.
105 As I have said, an ordinary or reasonable consumer of the promotional material, would not take particular care in reading the flyer and standee, and in construing the message conveyed, would be influenced by the overall impression created by each document as a whole, rather than by a reflective analysis of the possible meaning of the words. For this reason, an ordinary or reasonable consumer would not in construing the message conveyed embark upon the process of reasoning contended for by the respondent at [92] above.
106 The respondent also contended that common sense dictated that there may be circumstances where there would be no positive advantage to be obtained by using Dulux heat reflect paint and, therefore, an ordinary or reasonable consumer would not conclude that the flyer and standee conveyed the exterior temperature reduction representation, because this representation carried with it the implication that the application of the paint would always deliver an exterior surface temperature reduction to the consumer. Thus, for example, said the respondent, if the Dulux heat reflect paint was applied to a wall which was always in the shade, there would be no advantage in using heat reflect paint rather than standard paint.
107 As I have previously mentioned, an ordinary or reasonable consumer reading the flyer and standee, would be strongly influenced by the overall impression created by the get-up and headline statements made in those documents.
108 In my view, an ordinary or reasonable consumer would not understand the representation to be addressed to the circumstance such as that of a wall which was always in the shade. In particular, this is because the blazing sun image plays such a prominent part in the room comparison image. An ordinary or reasonable consumer would understand the representation as applying to the comparative advantage in using heat reflect paint to paint an exterior wall of a house exposed to the sun's heat. The room comparison image as well as the Weathershield logo itself (which depicts heat emanating from a blazing sun), make it clear that the representations as to the reflective qualities of the paint are premised on the exterior wall being exposed to radiant heat generated by exposure to the sun.
109 Accordingly, I answer question 6 in the affirmative.
110 I now deal with the question of whether the promotional material conveyed the interior temperature reduction representation. As mentioned, the respondent accepted that the words and images in the flyer and standee conveyed the representation that applying Dulux heat reflect paint to the exterior walls of a house could and would reduce the interior temperature of the house. The difference between the parties was that the applicant contended that the representation conveyed was that the application of the Dulux heat reflect paint to the exterior walls of a house would "significantly" reduce the interior temperature of the house.
111 In my view, the applicant's contention is to be upheld.
112 As I observed when discussing the exterior temperature reduction representation, the room comparison image has a powerful influence on the content of the representation which would be conveyed to an ordinary or reasonable consumer reading the promotional material.
113 In contrast to the position in relation to the InfraCool colour chart, the heat reflect promotional material is devoid of the range of information explaining in some detail the different heat reflective qualities of the colours of the Dulux paint. Further, the importance of the colour of the Dulux paint in achieving the represented results (as portrayed by the InfraCool image which expressly refers to and depicts the relative position when the roof is painted with InfraCool Black System paint, and black conventional paint) is not conveyed in the room comparison image which is so prominent in the flyer and standee.
114 In the case of the flyer and standee, such qualifying information as there is, is in very small print and does not descend into the detailed heat reflective capability information of each of the Dulux colours to be found in the InfraCool colour chart. The qualifying information in the flyer and standee would not, therefore, in the mind of an ordinary or reasonable consumer, dispel the powerful impression which is created by the room comparison image.
115 In my view, therefore, an ordinary or reasonable consumer, looking at each of the flyer and standee as a whole, would be particularly influenced by the overwhelming power of the room comparison image and would understand the respondent to be representing that the application of the Dulux heat reflect paint, rather than standard paint to the exterior walls of a house, would result in a significant reduction to the interior temperature of the house.
116 Accordingly, I answer question 7 in the affirmative.