Unilever Australia Ltd v Revlon Australia Pty Ltd

Paragraph [14] 7 Paragraph [14] of Ms Raso's seventh affidavit states: In my opinion, based on my 25 years' experience in marketing, advertising and consumer research, the Mitchum Three Toned Triangles are the design element on the packaging that most clearly stands out on shelf and the variant colours are likely to be recalled by consumers as colour cues to signify "their" chosen variant. I consider that this is the element that would be recalled by a consumer when picturing the Mitchum Clinical packaging. The Mitchum Three Toned Triangles are the primary identifying design element of the packaging. As noted above these considerations are based on my 25 years' experience in marketing, advertising and product packaging development for fast consumer goods. For example, when I worked at Campbell's Arnott's, I was responsible for marketing and packaging design end promotion for Tiny Teddies biscuits, the appeal of which arises from the depiction of the recognisably-shaped teddies on the packaging, as opposed to the brand name of the product. When I was working on this brand, Campbell's Arnott's performed consumer research, including research concerning the appeal of this product to children, which revealed that the focus of the decision to select the product off the shelves was the images of the teddies on the packaging; there was not immediate recourse to the brand name which young children might not be able to read. This recognition of the design element over the brand name was further reinforced when in the same roll I worked on the development of "Big TedZ". A further example from my experience where the design elements of the packaging dominate over the brand name is from when I worked on the Bundaberg Rum brand whilst I was at Diageo Australia; I recall that research that I observed in that role indicated to me that the "Bundy bear" and the yellow colouring was the distinctive element of the packaging for that product. 8 Unilever objects to the whole of paragraph [14] on the basis that it is inadmissible opinion or speculation. 9 In paragraph [14], Ms Raso sets out her opinion that the variant colours on the Mitchum packaging are likely to be recalled by consumers as colour cues to signify their chosen variant. In support of that opinion she sets out experience of consumer research while working at Campbell's Arnott's, which demonstrated in broad terms that packaging can dominate, or have a dominating function, over a brand name. In that particular instance, the product, Tiny Teddies, was directed to young children who might not be able to read. 10 Ms Raso then gives the example of Bundaberg Rum, as a case where design elements of packaging dominate over the brand name. The suggestion appears to be that the experience of packaging as a feature which dominates over the brand name provides a basis for her opinion about consumer recall of Mitchum Clinical packaging. 11 I have difficulty understanding how that opinion can be based on the identified experience, because any opinion as to a person's recall of a particular circumstance or a particular design would require consideration of the circumstances of exposure to the packaging prior to the recall. In this case, Ms Raso does not give any explanation of the assumptions that she would make about the extent or circumstances of prior exposure to the packaging beyond the implication that if the consumer has a chosen variant of a product, the consumer has used, if not purchased, the product on at least one occasion in the past. Without that explanation, I am not satisfied that the opinion expressed in paragraph [14] is wholly or substantially based on Ms Raso's specialised knowledge. Rather, the opinion appears to be in the nature of speculation. 12 In addition, even if the opinion were properly based on Ms Raso's specialised knowledge, it would be necessary to understand more about the circumstances in which the packaging came to dominate over the brand in relation to the Tiny Teddies product or the Bundaberg Rum product. As it stands, there is no explanation of how that research might be relevant to a conclusion about the recall of a consumer when picturing the Mitchum Clinical packaging. In those circumstances, there may be a further basis for excluding the evidence under s 135 of the Act, namely, that it would be unfairly prejudicial to Unilever to admit the evidence where there is no sensible basis for testing the relevance of the Campbell's Arnott's and Bundaberg Rum consumer research, or where doing so might result in an undue waste of time.

Paragraph [24] 13 Paragraph [24] of Ms Raso's seventh affidavit states: Based on my experience in marketing and advertising, owing to the number of sales of Mitchum Clinical since January 2014 and to Revlon's advertising campaign which featured pack shots of the product, I consider that Australian consumers who had seen the Mitchum Clinical advertisements or seen the product on retail shelves would identify Mitchum Clinical as a brand of clinical anti-perspirant deodorant and are likely to have familiarity with the packaging. This is based on my prior experience where I am aware of pack shots in advertisements increasing the recognisability and consumer knowledge about the particular product advertised. For example, in my role as Marketing Manager in the Personal Care division of Colgate Palmolive, I was responsible for the launch of Softwash Antibacterial Handwash which within 18 months it became the number 1 selling SKU in the category. The advertising for Softwash Antibacterial Handwash featured pack shots showing the now recognisable amber coloured wash in a clear plastic bottle. Within a short period of time, this pack became very recognisable amongst consumers as distinctive of the antibacterial category of hand wash. Similarly, from my experience working for Campbell's Arnott's, I know that targeted advertising correlates to sales and recognition of the product advertised. For example, when I was at Campbell's Arnott's, I was involved in organising the advertising for Campbell's Real Stock throughout Australia's Masterchef television program. 14 Ms Raso expresses the opinion that Australian consumers who had seen Mitchum Clinical advertisements or seen the product on retail shelves would identify Mitchum Clinical as a brand of clinical antiperspirant deodorant and are likely to have familiarity with the package. The stated bases for that opinion are Ms Raso's experience in launching the Softwash Antibacterial Handwash product and her observation that immediately after Campbell's Real Stock was advertised on the Australian MasterChef television program, the sales of Campbell's Real Stock increased. 15 The paragraph does not disclose how that experience could bear upon the conclusion that Australian consumers who had seen Mitchum Clinical advertisements or seen the product on retail shelves would have familiarity with the packaging. In those circumstances, I am not satisfied that the opinion stated in paragraph [24] is wholly or substantially based on Ms Raso's specialised knowledge. Further, and similarly to the position in relation to paragraph [14], in the absence of information about the circumstances of the launch of the Softwash Antibacterial Handwash product and the Campbell's Real Stock advertising campaign, in my opinion, paragraph 24 ought to be rejected on the basis that its admission would be unfairly prejudicial to Unilever because an informed cross-examination on the basis of the opinion could not be undertaken. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.