Issue 1: Did Beiersdorf make the Similarity and Superiority Representations?
121 The first issue is whether, in marketing, distributing and selling the Nivea Stress Protect Clinical Strength product in the way it did, Beiersdorf made any of the Similarity or Superiority Representations.
122 The first point that should be made in respect of this issue is a rather obvious one. The point is that this is not a passing-off case, or at least not the usual type of passing-off case, where a trader who has established a reputation in a particular or distinctive name, "get-up", or other trade indicia, alleges that a competitor had effectively appropriated that name or get-up and was thereby misleading consumers by representing that there was some association between the two rival traders or their products. Unilever did not allege that, by using the name "clinical", or by selling its products in a box with a leaflet, or by selling its products at a price which was higher than other "non-clinical" antiperspirant deodorants, Beiersdorf misled, or was likely to have misled, consumers into believing that the Nivea Stress Protect Clinical Strength products were somehow associated or affiliated with Unilever or its Rexona and Dove Clinical Protection range. There was also no allegation that consumers were, or were likely to be, misled as to the source or origin of the Nivea Stress Protect Clinical Strength range. There could be little doubt that consumers were aware, or were likely to be aware, that Unilever's Rexona and Dove Clinical Protection products and Beiersdorf's Nivea Stress Protect Clinical Strength products were rival products that were marketed, distributed and sold by rival traders.
123 As Beiersdorf pointed out, it was not in any way prevented from using the word "clinical" in its product name or in its marketing, unless in doing so it misled or deceived consumers in some way. Nor was it prevented from selling its product in a box with a leaflet, again unless in some way it misled or deceived consumers. Beiersdorf argued that that was unlikely to be the case, at least in the conventional passing-off sense, in circumstances where it had clearly marked its product to distinguish it from Unilever's products. In that regard, the following observations of Gibbs CJ in Parkdale were apposite (at 199-200):
Speaking generally, the sale by one manufacturer of goods which closely resemble those of another manufacturer is not a breach of s. 52 if the goods are properly labelled. There are hundreds of ordinary articles of consumption which, although made by different manufacturers and of different quality, closely resemble one another. In some cases this is because the design of a particular article has traditionally, or over a considerable period of time, been accepted as the most suitable for the purpose which the article serves. In some cases indeed no other design would be practicable. In other cases, although the article in question is the product of the invention of a person who is currently trading, the suitability of the design or appearance of the article is such that a market has become established which other manufacturers endeavour to satisfy, as they are entitled to do if no property exists in the design or appearance of the article. In all of these cases, the normal and reasonable way to distinguish one product from another is by marks, brands or labels. If an article is properly labelled so as to show the name of the manufacturer or the source of the article its close resemblance to another article will not mislead an ordinary reasonable member of the public.
124 The second point is perhaps equally obvious. With the possible exception of the Stress Sweat Representations, which were in any event admitted, Beiersdorf did not expressly make any of the representations. Neither the Nivea Stress Protect Clinical Strength advertisements, nor the get-up or other trade or marketing indicia or material, expressly stated that the Nivea product was or would be similarly efficacious, or would provide similar antiperspirant protection, to the products in the Rexona and Dove Clinical Protection range and the Mitchum Clinical range. No such statement was made on the relevant Nivea canisters, or the box in which they were sold, or in the leaflet that was included in the box. The marketing material did not contain or include any express comparison of any sort between the antiperspirant efficacy of the Nivea Stress Protect Clinical Strength products and the Rexona or Dove Clinical Protection and Mitchum Clinical products.
125 The Nivea Stress Protect Clinical Strength advertisements and other marketing material also did not expressly state that the products had greater antiperspirant efficacy than all other "non-clinical" antiperspirant deodorants. Nor was such a representation expressly made on the relevant Nivea canisters, or the box in which they were sold, or in the leaflet included in the box.
126 In those circumstances, Unilever's case was, in substance, that the Similarity and Superiority Representations were to be implied or inferred from Beiersdorf's conduct in marketing, distributing and selling the Nivea Stress Protect Clinical Strength range; that Beiersdorf's conduct in that regard impliedly or implicitly conveyed the representations. Unilever contended, in short, that Beiersdorf had not employed the "primitive club of direct misrepresentation", but had instead employed the "more sophisticated rapier of suggestion": cf. Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 at 586.
127 It should be emphasised, in this context, that the question whether the representations were conveyed as alleged must be approached from the perspective of the relevant class of people who were, or were likely to be, misled or deceived by the representations if they were false as alleged. The relevant class of persons, having regard to the way Unilever pleaded its case, was the class of ordinary or reasonable consumers of antiperspirant deodorants in Australia. Unilever alleged that the relevant market was the Australian market for antiperspirant deodorants. While Unilever contended that there was a clinical subcategory or segment within the Australian market for antiperspirant deodorants, it did not go so far as to allege or contend that there was a separate market for so-called clinical antiperspirant deodorants.
128 Unilever's case, in simple terms, was that the Similarity Representations and the Superiority Representations were implicitly or impliedly conveyed to ordinary reasonable consumers of antiperspirant deodorants by Beiersdorf's marketing, distribution and selling of the Nivea Stress Protect Clinical Strength range having regard to particular features of the market for antiperspirant deodorants in Australia at the relevant time. In that regard, Unilever pointed, in particular, to evidence that suggested that there was a clearly established "clinical" subcategory or segment of the antiperspirant deodorant market in Australia. Prior to the launch of the Nivea product, the Rexona and Dove Clinical Protection range and the Mitchum Clinical range were essentially the only products in the clinical subcategory. Those products had particular and unique features: use of the word "clinical"; packaging in a box; the inclusion of a leaflet in the box; and a significantly higher price than products that were not within the clinical subcategory or segment.
129 Unilever's case was that, when Beiersdorf launched its Nivea Stress Protect Clinical Strength range in Australia in July 2014, it consciously and deliberately launched it in the clinical subcategory or segment. It prominently used the word "clinical" on the canisters and packaging; it sold the product in a box; it provided a leaflet in the box; and it recommended that the product be priced at a price similar to the Rexona, Dove and Mitchum products in the clinical segment, being a price significantly higher than most, if not all, other antiperspirant products. Unilever contended that, in those circumstances, Beiersdorf impliedly conveyed to ordinary reasonable consumers of antiperspirant deodorants that, in general terms, the Nivea Stress Protect Clinical Strength product would have similar antiperspirant efficacy, or provide similar antiperspirant protection, as the antiperspirants that were already established in the clinical subcategory: the Rexona and Dove Clinical Protection antiperspirant deodorants and the Mitchum Clinical range.
130 Unilever also contended that, by acting as it did, Beiersdorf impliedly conveyed to ordinary reasonable consumers of antiperspirant deodorants that the Nivea Stress Protect Clinical Strength products had greater antiperspirant efficacy, or provided a greater level of antiperspirant protection, than all other "non-clinical" antiperspirant deodorants. "Non-clinical" antiperspirant deodorants, in that context, comprised all antiperspirant deodorants sold in Australian supermarkets other than the Rexona and Dove Clinical Protection range and the Mitchum Clinical range. The basis of that contention appeared to be that the ordinary reasonable consumer of antiperspirant deodorants would have perceived that "membership" of the clinical subcategory or segment entailed superiority over all other antiperspirant deodorant products.
131 It would be fair to say that the evidence, considered as a whole, did establish a number of the key factual components of Unilever's case.
132 There could be little or no doubt, for example, that there was, or was at least perceived by consumers to be, a "clinical" subcategory or segment of the Australian market for antiperspirant deodorants. Beiersdorf's internal marketing documents effectively recognised the existence of that category or segment. So too did Ms Braun in her evidence. The existence of the clinical segment was also consistent with Prof. Klein's evidence concerning the established clinical "subcategory". The supermarkets also appeared to recognise the existence of the clinical subcategory or segment; they grouped the members, or perceived members, of the segment together on their shelves.
133 The evidence also established that, as at July 2014, the clinical subcategory or segment was effectively occupied by the Rexona and Dove Clinical Protection range and the Mitchum Clinical range. There could be little doubt that those products were marketed, distributed and sold in a relatively distinctive way: prominent use of the word "clinical" in the product name and on the packaging; sale in a box with an instructional leaflet; a significantly higher price; and marketing and advertising which suggested that the products were suitable for people who were, or perceived themselves to be, heavy sweaters, or people who were concerned about the effects of heavy sweating.
134 There could also be little or no doubt that Beiersdorf launched the Nivea Stress Protect Clinical Strength range in such a way that the product would be perceived by consumers to fall within the existing clinical subcategory or segment. Indeed, according to Ms Braun, Beiersdorf consciously adopted the various "cues" of the existing products within the clinical subcategory: use of the word "clinical"; the box; the leaflet; and the comparatively higher price. By doing so, it may reasonably be inferred that Beiersdorf intended to, and effectively did, impliedly represent to ordinary reasonable consumers of antiperspirant deodorants that its Nivea Stress Protect Clinical Strength product belonged in the clinical subcategory or segment.
135 The critical question, however, is what membership of the clinical subcategory or segment itself conveyed, or was likely to convey, to ordinary reasonable consumers of antiperspirant deodorants? What did Beiersdorf impliedly represent to the ordinary reasonable consumer when it adopted the clinical subcategory "cues" and marketed its product in such a way as to position its product in the clinical subcategory? Did it, as Unilever contended, implicitly or impliedly represent to those consumers that Nivea Stress Protect Clinical Strength had similar antiperspirant efficacy, or provided similar antiperspirant protection, to the existing products in the clinical subcategory or segment, and superior antiperspirant efficacy to all other non-clinical antiperspirant deodorants? Or did it, as Beiersdorf effectively contended, only convey that the Nivea Stress Protect Clinical Strength products were Nivea's highest strength, or most efficacious antiperspirant deodorant in its Stress Protect range, and were high-strength, or high-efficacy products, particularly in respect of stress sweat?
136 Those questions, while easy to pose, are by no means easy to answer. They raise a number of issues.
137 The first, and perhaps most critical, issue concerns the qualities or characteristics that the ordinary reasonable consumer of antiperspirant products may be taken to have expected of an antiperspirant deodorant which was effectively marketed as being within the clinical subcategory or segment. As was noted earlier, in the context of Prof. Klein's evidence, it is, at best, doubtful that consumers would have bought an antiperspirant deodorant in the clinical segment or subcategory of the market simply because it included the word "clinical" in its name or get-up, or because it was sold in a box which included a leaflet, or because it was more expensive. They no doubt bought it because of what those features, in combination, conveyed or represented about the product itself; what they understood or believed to be the qualities or characteristics of a so-called "clinical" product.
138 The difficulty for Unilever is that the evidence, considered as a whole, ultimately established that the ordinary reasonable consumer of antiperspirant deodorants in Australia was, in all the circumstances, likely to believe or understand no more than that an antiperspirant deodorant in the clinical segment was one which was, or was said to be, a high-strength product, or a product which was highly efficacious and particularly suitable for people who were, or perceived themselves to be, heavy sweaters. In those circumstances, Beiersdorf's conduct in marketing, distributing and selling the Nivea Stress Protect Clinical Strength range as belonging in the clinical subcategory or segment amounted to no more than a representation that its product was a product which was a high-strength product, or perhaps a highly efficacious product for heavy sweaters. It did not, as Unilever effectively contended, amount to an implied representation that the product met some specific benchmark of strength or efficacy, by reference to perspiration reduction, which had been established by the existing products in the clinical range.
139 There are a number of considerations that lead to that conclusion. They include: the relatively limited meaning that consumers were likely to give to the use of the word "clinical" in the circumstances; the nature of the so-called clinical subcategory or segment in the market for antiperspirant deodorants in Australia and what consumers were likely to infer from it; and the advertising in respect of the products within the clinical subcategory or segment, which emphasised high strength, but did not advert to any specific clinical benchmark. Questions also arise about how the ordinary reasonable consumer would be likely to understand and approach information or representations concerning the efficacy or strength of antiperspirant deodorants. Are they likely to see efficacy and strength simply in quantitative terms involving the reduction of perspiration, or do they also have regard to the deodorant qualities of an antiperspirant deodorant and perhaps other even more subjective or qualitative features?
140 Each of those considerations or issues will be discussed in turn.