Unilever Australia Ltd v Revlon Australia Pty Ltd

The Interlocutory Application 27 The interlocutory application came on for hearing before me on 29 May 2014. At the start of the hearing I offered the parties an early final hearing before the Docket Judge on a large range of dates throughout July. The parties accepted the offer of an early final hearing but Unilever, nevertheless, sought interlocutory injunctive relief, although in narrower terms than those which are set out in the Originating Application. 28 Ultimately, Unilever sought interlocutory relief restraining Revlon from publishing advertisements in the form of those which appeared in New Idea and Women's Day as well as from broadcasting the YouTube/television advertisement. 29 Unilever also sought to restrain Revlon on an interlocutory basis from making the representations set out in paragraph 6 of the Originating Application. Those representations are said to be as follows: (a) Mitchum Clinical controls sweat and odour more effectively than any other antiperspirant deodorant on the Australian market while [Rexona and Dove] Clinical Protection and Mitchum Clinical are sold in Australia; (b) use of Mitchum Clinical neutralises all body odour. 30 The issue which arises is whether Unilever has demonstrated a prima facie case that the advertisements are misleading and whether the balance of convenience favours the grant of interlocutory relief within the test stated by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65]. The test has been reiterated and discussed in a number of decisions of Full Courts of this Court including Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[74] and GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd (2013) 305 ALR 363 (GSK) at [81]. 31 Whether there is a serious question, or a prima facie case, is not to be considered in isolation from the discretionary considerations which inform the balance of convenience. What is involved here is an assessment of whether Unilever has demonstrated a sufficient probability of success to justify the grant of interlocutory relief in light of the discretionary considerations raised in the interlocutory hearing. 32 Of particular importance is an assessment and comparison of the prejudice and hardship likely to be suffered by Unilever and Revlon, as well as the impact upon the relevant class of consumers, if an injunction is granted or refused: GSK at [81(i)]. 33 The question of whether Unilever has established a prima facie case, turns upon whether Revlon may be said to have made the representations to which Unilever points and whether those representations may be said to be misleading or deceptive within the principles stated in a series of High Court authorities: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [25] and [102]. The emphasis placed in the authorities upon the need to consider the conduct in its full context is of course of equal importance in the case of advertisements: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 4.

Consideration 34 Unilever contends that the advertisements set out above contain two representations which are said to be misleading and deceptive. 35 The first representation is said to be that Mitchum Clinical controls sweat and odour more effectively than any other clinical anti-perspirant deodorant in the Australian market. 36 Since the only clinical products presently available in the Australian market are Rexona, Dove and Mitchum, the effect of the representation is said to be that Mitchum Clinical is more effective than Rexona and Dove. 37 The representation is said to be made in the phrase "The ULTIMATE sweat + odour control" which appears in each of Revlon's advertisements, as well as in the shield device. 38 Unilever relies on the evidence of its Personal Care, Research and Development Technical Manager, Mr Daniel Mullette, to demonstrate the falsity of the representation. Mr Mullette's evidence is that each of the competing products is equally effective in controlling sweat and odour. 39 Revlon's expert, Dr Michael Traudt, did not directly attack this aspect of Mr Mullette's evidence. Rather, Revlon's attack on the first representation was that the phrase "The ULTIMATE sweat + odour control" is merely a puff of the type commonly used in advertising: General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 178. 40 In my opinion there is a serious question to be tried as to whether the phrase, considered in its full context, constitutes a representation or whether it is, as Revlon contends, merely a puff. 41 However, the nature of the serious question is such that discretionary considerations lean strongly against the grant of interlocutory relief to restrain the making of the alleged representation. 42 One of the discretionary considerations is the early final hearing which is due to take place next month. Another is the need for a closer consideration of the context, as well as the need to determine the impact of the advertisement upon the relevant class of consumers: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 (Nike) at [102], [103]. 43 It is true that I was taken, to some extent, to the context in which the advertisements appeared but little or no attention was paid to determining the relevant class of persons to whom the advertisements are directed and their impact upon such persons. 44 The internal Revlon emails to which Unilever referred (Exhibit A) are, in my opinion, of little assistance in answering this question. In particular, the content of the emails is concerned with the way in which Revlon wished to "pitch" the advertisement. The emails do not, in themselves, provide an answer to the question posed in Nike. 45 The second representation is that Mitchum Clinical neutralises all body odour. That representation is made in each of Revlon's advertisements. But a difficulty arises in determining whether Unilever has established a prima facie case that the representation is misleading or deceptive. 46 The difficulty is due, in part, to the fact that Unilever did not pursue its claim for interlocutory relief in respect of paragraphs 6(c) to 6(e) of the Originating Application. Those paragraphs seek orders restraining Revlon from making representations to the effect that Mitchum Clinical contains oxygen. 47 The use of oxygen in Mitchum Clinical is claimed by Revlon to be an essential part of its new "Oxygen Odour Control Technology". It is also said to provide special benefits to consumers in controlling and neutralising perspiration odour. 48 However, the separation of paragraphs 6(c) to 6(e) of the Originating Application from paragraph 6(b) makes it more difficult to form a view as to Revlon's claim that the use of Mitchum Clinical neutralises all body odour. 49 In addition, Dr Traudt's evidence must be taken into account in determining whether Unilever has established a prima facie case in relation to the representation that Mitchum Clinical has the beneficial effect claimed in the advertisements. 50 The task which I must undertake in deciding this issue was described by a Full Court (Allsop CJ, Jagot and Nicholas JJ) in Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59 at [72], citing the observations of Mahoney JA (with whom Glass and Samuels JJA agreed) in Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734. 51 In the present case, Dr Traudt's evidence contains what appears to me to be a helpful explanation of the way in which anti-perspirants work. He explains that members of a certain type of bacteria which commonly exist in the human axillia (or armpit) are the primary, but not exclusive, causative agents of axillary malodour and that a specific thiol is a major contributor. 52 Dr Traudt goes on to say that the formula for Mitchum Clinical includes stabilised hydrogen peroxide which works so as to oxidise any malodourous thiols present in a consumer's armpit through the release of oxygen when the product is applied. 53 Dr Traudt's evidence goes some way toward demonstrating that Unilever has not made out a prima facie case in relation to Unilever's claim that Mitchum Clinical does not neutralise all body odour. However, in my opinion the better view is that the dispute between the experts as to this question cannot be resolved in the present interlocutory hearing. 54 Unilever pointed to certain confidential evidence in a report obtained by Revlon which was part of Exhibit 1. The results of clinical testing set out in Table 2 to the report suggest some instances in which the result was greater than the odour neutral score of 4. This suggests that for a small percentage of the persons who were the subjects of the tests, the application of Mitchum Clinical resulted in some odour. This would lead to the conclusion that the phrase "Mitchum Clinical neutralises all odour" is misleading. 55 However, I do not consider that the results of this clinical testing are sufficiently clear that they establish a prima facie case to the level which in my view would be necessary to warrant the grant of interlocutory relief. 56 It may be true, as Senior Counsel for Unilever submits, that an injunction would have limited effect on Revlon's marketing arrangements with Woolworths and Coles, which were not explained in any detail. However, it is clear that if I were to grant an injunction it would have some adverse effect on Revlon's marketing campaign which has been planned on a worldwide basis over a substantial period of time. 57 It is difficult to determine the precise effect on Revlon. It may not be great because I was informed, at the conclusion of argument, that the New Idea and Herald Sun "Sunday Style" advertising has been completed. 58 In any event it is necessary to weigh against the adverse effects on Revlon, the effect on Unilever and consumers. 59 Whilst it is possible that consumers may be misled, I cannot be satisfied of this to the extent which in my opinion would be needed to justify the grant of interlocutory relief to restrain advertising. This is particularly so, as I have said, where a final hearing is to take place next month. 60 So far as Unilever is concerned, it seems to me that I can take into account the fact that it held a monopoly on the sale of clinical products until January and, notwithstanding Revlon's efforts to enter the market, Unilever still holds a 93% share of this sub-market. 61 Moreover, the sub-market for clinical products is a very small part of the large market for anti-perspirant deodorants in which Unilever is the market leader. Any adverse effects on Unilever can be met by an order for corrective advertising if Unilever succeeds at the trial next month. I note that Unilever seeks such an order in paragraph 7 of the Originating Application.

Orders 62 I will order that Unilever's claim for interlocutory relief be dismissed with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.