Businesses wanting to promote their products by way of comparison with those of their trade rivals need to take particular care. This was reinforced by the recent Federal Court decision in Reckitt Benckiser (Australia) Pty Ltd v SC Johnson & Son Pty Limited.
On the nose
This case is the Australia manifestation of an international dispute between Reckitt and SC Johnson over the introduction of SC Johnson's new Clean & Pure air sanitiser into the global air freshener market.
Reckitt is the manufacturer and distributor in Australia of Glen 20 surface spray disinfectant. In April this year, SC Johnson launched Clean & Pure in Australia and promoted it by way of a television advertising campaign. The advertisements in question depict a husband and wife overjoyed at the discovery of Clean & Pure and include the following dialogue:
"We thought Glen 20 was an air sanitiser?"
"Actually, Glen 20 works on surfaces but it doesn't kill bacteria in the air. Only Glade Clean & Pure eliminates odour causing bacteria in the air."
Reckitt took exception to the Clean & Pure advertisements and commenced proceedings under sections 52 and 53(c) of the Trade Practices Act 1974 (Cth). Reckitt alleged (among other things) that SC Johnson's claim that Clean & Pure is more effective than Glen 20 because it eliminates odour causing bacteria in the air is misleading or deceptive.
Breath of fresh air
SC Johnson defended the proceeding on the grounds that the claims made in its advertisements were, in fact, true. In doing so, SC Johnson relied heavily upon the expert evidence of a number of microbiologists who testified that odour causing bacteria can live in the air and that the active ingredient in Clean & Pure (not found in Glen 20) does actually eliminate such bacteria.
Reckitt answered with its own expert evidence from microbiologists who (perhaps not surprisingly) were of a substantially different view. Reckitt's experts testified that bacteria was not capable of surviving long in the air and that very few air borne bacteria produce odour.
The result was a volume of scientific evidence described by the Court as "almost without precedent" in proceedings of this nature. In weighing up the conflicting scientific evidence, the Court noted that it is not required to be satisfied beyond reasonable doubt as to the correctness of any scientific findings, nor is it required to assume the role of scientific mediator. The Court is simply required to determine whether, on the balance of probabilities, one conflicting scientific view is preferable to the other.
In this case, the Court preferred the scientific evidence of SC Johnson and held that the claim that Clean & Pure eliminates odour causing bacteria in the air, as that claim would be understood by a reasonable consumer, is not misleading or deceptive.
Interestingly, soon after the launch of Clean & Pure in Australia Reckitt launched its own air sanitiser, AirWick Purity, which was promoted as "neutralising odours caused by germs". In finding for SC Johnson, the Court noted that the success of the Clean & Pure product was such that Reckitt had found itself embroiled in "catch up activities" which were evidenced by certain internal memoranda of Reckitt officers. The Court held that the aggregate of these internal memoranda caused a significant measure of damage to Reckitt's case.
Passing the smell test
While the law that applies to representations made in the context of comparative advertising is the same as applies to other forms of advertising, any inaccuracy, half-truth, ambiguity or omission made in the context of comparative advertising has a greater potential to misleading consumers than in other spheres of advertising. What's more, there is sure to be a trade rival carefully scrutinising any comparisons made. Therefore, before embarking on a campaign of comparative advertising, businesses should satisfy themselves that any representations arguably arising from comparisons made are clearly justifiable.
Further, businesses should carefully consider the nature of their own internal documentation prior to commencing legal action in relation to the comparative advertising of a trade rival. Each party to any such action will be required to produce all documents relevant to the advertisement in question, even those that may be damaging to their own case (unless they are protected by legal professional privilege). If in doubt, advice should be obtained in relation to this issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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