Unilever Australia Ltd v Revlon Australia Pty Ltd

Introduction and Background 1 The Applicant (Unilever) and the Respondent (Revlon) manufacture and sell in Australia competing brands of a "clinical" anti-perspirant deodorant product. Unilever's products are sold under the names "Rexona" and "Dove". Revlon's products are sold under the name "Mitchum". 2 Clinical anti-perspirant deodorants provide protection against heavy sweating. Unilever's clinical products are sold under the names "Rexona Clinical Protection" and "Dove Clinical Protection". Revlon's product is sold under the name "Mitchum Clinical". 3 The Rexona and Dove clinical protection products have been marketed and sold in Australia since 2009. They were the only such product sold in the Australian market until January 2014 when Mitchum Clinical was released. 4 In early May 2014 Revlon launched an advertising campaign in support of the Mitchum Clinical brand. Revlon's Marketing Director, Ms Tracey Raso, describes it as a "robust media campaign". 5 Ms Raso states that the advertising campaign started on 3 May 2014 and is scheduled to continue until approximately the end of June 2014. Her evidence is that the advertising campaign will be "critical" to the success of the Mitchum Clinical product in the Australian market. 6 The Australian anti-perspirant deodorant product market accounts for over $380 million of annual retail sales. Clinical anti-perspirant deodorants comprise only about 1.8% of sales in number, but apparently constitute about $20 million in value. 7 Unilever is the market leader in the anti-perspirant deodorant market in Australia with a total market share of approximately 65% to 66%. 8 Following the release of Mitchum Clinical in January of this year, Unilever's share of the clinical products sub-market has fallen slightly from its previous 100% share and now stands at approximately 93%. Revlon holds the balance, namely about 7%. 9 On about 5 May 2014, Unilever's Vice President of Marketing in Australia, Ms Andrea Martens, became aware of an advertisement published the previous day in the Herald Sun's "Sunday Style" magazine. The advertisement included the following statement: You thought nothing was STRONGER? Switch to Mitchum - the ULTIMATE sweat + odour control. 10 During May 2014 Revlon published other advertisements or advertorials for its Mitchum Clinical product in various forms of media. One of the advertisements was published in the New Idea magazine on 19 May 2014. A copy of the advertisement was annexure D to Ms Martens' affidavit. 11 The advertisement in New Idea is headed "NEW Mitchum Clinical". It contains a photograph of a young couple engaged in what is apparently the challenging physical pursuit of rock climbing. 12 Under the photograph, in bold green letters, the words "The ULTIMATE sweat + odour control" are set out. They appear next to a logo or device which is shown in the middle of the page. The device is in the form of a green coloured shield with a silver border. The words "THE ULTIMATE" and "CONTROL" appear in white letters inside the shield and those words are separated by a red band containing, in white letters, the words "SWEAT + ODOUR". 13 The advertisement goes on to say, underneath the photograph, and below the words and the shield device, that "Great moments in life make you sweat". It then says "Enjoy them with confidence with Mitchum Clinical™" and continues: Its revolutionary oxygen odour control technology targets and destroys odour, neutralising it all. 14 Later in May, Revlon published an advertorial in the Women's Day magazine which included, as part of the advertorial, an advertisement in precisely the same form as that which had appeared in New Idea. The advertorial was annexure E to Ms Martens' affidavit. 15 During May, Revlon also published an advertisement for Mitchum Clinical on YouTube. The same advertisement was broadcast on television on or about 18 May 2014. 16 The YouTube/television advertisement is very short. It runs for about 15 seconds. It may be described as an audio-visual depiction of the "rock climbing" advertisement that appeared in New Idea. It contains a voice over of a female voice which states: Mitchum presents "Great moments in life make you sweat". Enjoy them with confidence with Mitchum Clinical. Its oxygen odour control technology targets and destroys odour. Switch to Mitchum Clinical, the ultimate sweat plus odour control. 17 This advertisement also includes a depiction of a round device with the words "OXYGEN" and, in slightly smaller letters, "ODOUR CONTROL", inside the device. 18 In addition, the following words are shown on the advertisement: OXYGEN NEUTRALISES ALL ODOURS NO ODOUR (in smaller print) 19 The shield device which appeared in the New Idea advertisement also appeared in identical form in the YouTube/television advertisement. 20 There was a reference to the availability of the product in Woolworths and Coles at the end of the advertisement. 21 Between 16 May 2014 and 22 May 2014 there was correspondence between the parties' legal representatives about the advertisements. Unilever's lawyers contended that Revlon's advertisements contravened s 18 of the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the ACL) in a number of different respects. 22 The complaints made on behalf of Unilever included a claim that the advertisement in the Herald Sun was a "superiority representation" which Revlon was not entitled to make because Unilever considered that Mitchum Clinical and the Rexona and Dove Clinical products each have parity of performance as an anti-perspirant deodorant. 23 The initial letter of demand complained that the Herald Sun advertisement was an "attempted riposte" to a tagline used by Rexona Clinical Protection, namely "nothing is stronger". The Rexona advertisement using that tagline was screened during the present interlocutory application. 24 A further complaint made on behalf of Unilever by its lawyers relates to the claimed benefits of Mitchum's "Oxygen odour control technology" including the question of whether the product contains oxygen either at all, or at sufficient levels to provide any anti-odour benefit to consumers. 25 On 23 May 2014, Unilever filed an Originating Application, Statement of Claim and supporting affidavits. The application seeks declarations that the advertisements referred to above, as well as certain statements and symbols appearing on the Mitchum Clinical packaging and products contravened s 18 of the ACL. 26 The application also seeks a wide range of injunctive relief on a final basis and interlocutory relief in the same terms (pending the final hearing).