Australia: Bad Hair Day For Aldi: Marketing Tag Lines And The Australian Consumer Law

Last Updated: 17 May 2018
Article by Marion Heathcote and Anna Harley

In MoroccanOil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823, Justice Katzmann found that the key packaging features which precluded a finding of passing off did not protect it from alternate ACL actions. Aldi's conduct in respect of the promotion of its "Moroccan Argan Oil" product range as "natural" or having certain performance benefits was considered of itself to be misleading and deceptive. This article considers the consumer law implications of the decision.

Background to the Morrocanoil dispute

Moroccanoil Israel Ltd (MIL) manufactures and produces a range of hair care and beauty products containing argan oil for sale in a number of countries under the brand name MOROCCANOIL. MIL's hair oil treatment, shampoo and conditioner, were launched in Australia in 2009. MIL products are packaged in a turquoise packaging and glass bottle with the distinctive Morrocanoil composite mark as depicted below.

Aldi, the German discount supermarket, sells a range of hair care products under the name "Moroccan Argan Oil". Each of those products is branded "PROTANE NATURALS" or "VISAGE".

MIL sued Aldi, alleging that Aldi's use of the name "Moroccan Argan Oil" infringed MIL's registered trade marks, engaged in misleading and deceptive conduct in contravention of the Australian Consumer Law (ACL) and constituted passing off. Aldi denied the allegations and cross-claimed for cancellation of the MIL trade marks for non-use.

"Like Brands. Only Cheaper"

As depicted, the Aldi products were marketed in bottles bearing pale blue labels which included prominently Aldi's house mark "PROTANE" together with the words "Moroccan Argan Oil" rendered in orange. The products were packaged in packaging of similar get up to MIL's products. Her Honour held that "Aldi unquestionably modelled its Oil Product on the MIL Oil Treatment" which was referred to as "the benchmark product" for the development of the Aldi home brand products. As Aldi's witnesses stated it was in this way that Aldi products were consistent with Aldi's customer focus, as captured in the slogan "Like Brands. Only Cheaper".

However, the Court held that the "mere fact that one trader copies aspects of the get-up of another..." does not mean that the conduct contravenes the ACL. Her Honour stated that this is because the Court must consider the differences as well as the similarities in making its assessment. The key differences in this case included the use of Aldi's house mark PROTANE, the word NATURALS, the absence of the "M" and the use of the plastic bottle instead of glass.

Her Honour also considered the trade channels and pricing differences between the two products to be relevant to her findings on misleading and deceptive conduct and passing off. She found that the trade channels and promotion used by MIL as being only available in salons and promoted through hair dressers, trade fairs and fashion magazines differed from those used by Aldi being Aldi supermarkets promoted by advertising brochures and occasional TV commercials. The target markets were different – MIL's products being high end, luxury or premium products whereas Aldi's products were considered by witnesses to be "low end" products and priced accordingly.

Whilst these findings suggest marketing and targeting at different price points and discrete markets may help consumers differentiate similarly packaged products, the addition of the other so called "differentiable material" and claims ultimately proved troublesome for Aldi.

"Naturals" Claim

The term "NATURALS" was widely used in Aldi's PROTANE product line. MIL alleged that use of the word "NATURALS" amounts to a representation that the products contain only or substantially natural ingredients, which is false. Her Honour was of the view that the ordinary or reasonable consumer shopping for hair care products, seeing the reference to "naturals" on the bottles or their containers, would consider that they were made, either wholly or substantially from natural ingredients. Therefore her Honour held that the ordinary and reasonable consumer would take the reference to the word "naturals" on the Aldi products as signification that they contain "substantially natural" products, except water, in circumstances where they do not. Therefore, she found that Aldi had engaged in misleading and deceptive conduct in respect of representations made that the Aldi Oil Treatment, the Shampoo and the Dry Shampoo were and are "natural".

This leaves open the question as to what "substantially natural" means in respect of the composition of ingredients contained in any given product and whether or not water ought to be included in the count. Justice Katzmann in holding that a product which includes substantial amounts of water would not be enough to justify a claim to the product being "natural" drew the analogy with Coca-Cola which has high water content. Her Honour said no reasonable consumer would consider Coca-Cola "natural" due to its substantial water content given the other ingredients present.

The composition of products bearing "natural" claims is becoming increasingly relevant in claims under the ACL. In circumstances where the industrialisation of many products requires the synthesis of natural products or the addition of substantial amounts of water in order to achieve stability or the desired consistency of a product these sorts of claims may attract further judicial scrutiny.

Performance Characteristics Claim

Some of Aldi's products claimed certain performance benefits of argan oil that MIL alleged to be false. Aldi's products included claims on their packaging that the argan oil "infused" in the products helped "strengthen hair" and "protect[s] hair from styling, heat and UV damage". Justice Katzmann rejected Aldi's argument that these were references to the products' capabilities overall rather than due to the use of argan oil. This was evidenced by the prominence given to the inclusion of the argan oil claims on the packaging and the evidence of Aldi's own internal documents. From this it was clear it was the argan oil that Aldi claimed was responsible for the desired characteristics.

Her Honour held that the performance benefits of argan oil claimed by Aldi in circumstances where the scientific evidence demonstrated the amount of argan oil was insubstantial and could not make a material contribution to the performance of the products were unjustified and a contravention of ss. 18 and 29.

Take away points

  • Any product marketed or represented as "natural" must contain substantially natural ingredients or the natural ingredients must be greater than synthetic ingredients (other than water).
  • Anything that denotes natural characteristics to attract certain consumers is increasingly becoming relevant to ACL inquiries.
  • The trade channels or pricing strategy for products claimed to be of similar "get up" may be relevant to the Court's consideration of passing off allegations.
  • Prominent claims about specific performance benefits of products need to be demonstrable either through scientific evidence or experimentation.
  • An appeal has been filed in respect of this decision, so MIL may not have washed Aldi out of its hair yet.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions