The case is a timely reminder of the power of urgent interim injunctions
The dishwashing wars continue. This product category has been the subject of a number of disputes between competitors in recent times (see previous blog posts here and here). In the latest instalment, RB (Hygiene Home) Australia Pty Ltd, part of the Reckitt Benckiser group of companies and the manufacturer of FINISH dishwashing products (RB), has come out on top. Reckitt Benckiser secured an urgent interim injunction (also referred to as a preliminary injunction) against Procter & Gamble's (P&G's) FAIRY "30 Minute Miracle" dishwashing tablet product (Miracle).
The recent Federal Court decision highlights the importance of ensuring claims to superior performance are accurate and the potential risks associated with relying on disclaimers. The case serves as a timely reminder that an urgent interim injunction can be a powerful remedy against a competitor. The practical consequence of the interim injunction granted by the Court in this case will require Procter & Gamble to pull the Miracle product from supermarket shelves only a short time after launch.
- Urgent interim injunctions are a powerful tool in the consumer goods space which may have far-reaching commercial consequences, in effect as substantial as final relief.
- It is important to move quickly when seeking an urgent interim injunction. In this case, the Miracle product was launched around 20 March 2023, the application for an urgent injunction was filed on 3 April 2023, and the hearing was held on 23 April 2023.
- Businesses should carefully consider the design and presentation of marketing claims on product packaging and how they would be perceived and understood by ordinary consumers. While disclaimers can be effective in some circumstances, they must be sufficiently prominent and legible, and cannot correct or contradict the headline representation having regard to the overall impression of the packaging.
- Claims to superior performance can be an effective marketing strategy. However, businesses should ensure that any performance claims are accurate, having regard to how an ordinary, reasonable consumer would understand the claim, and that the claim is able to be properly substantiated.
- The private interests of parties are not the sole consideration in balance of convenience where claims are based on the Australian Consumer Law. Courts will have strong regard to the public interest in protecting consumers from misleading and deceptive claims.
In March 2023, P&G launched a new premium "30 Minute Miracle" dishwashing tablet product under its "Fairy" brand in major supermarkets. The Fairy brand currently holds around a 15% share of the Australian dishwashing tablet market. Other dishwashing tablets sold in the Fairy-branded range include the "Platinum Plus" and "All in One" products. The front of the Miracle packaging bore an image of the Fairy brand and the "30 Minute Miracle" product name. It also included the words "Better Cleaning^even in 30 minutes" along with the disclaimer text "^Tested vs. Fairy All in One". The applicant, RB, is the supplier of rival "Finish"-branded dishwashing products, which hold around 60% share of the Australian market for dishwashing tablets. The Finish-branded range of dishwashing tablets include the "Ultimate Plus" and "Ultimate Pro" products. On 3 April 2023, RB commenced proceedings against P&G, seeking an urgent interim injunction under s 234(1) of the Australian Consumer Law (ACL) on the basis of contraventions of ss 18, 29(1)(a) and 33 of the ACL. In particular, RB alleged that the "30 Minute Miracle" name, "Better Cleaning^even in 30 minutes" statement on the packaging and a graph on the back of the packaging misrepresented that:
- Miracle is better at cleaning in a 30 minute cycle than the other products in the Fairy range;
- Miracle is better at cleaning in a 30 minute cycle than its competitors' products, including the applicant's Finish products;
- Miracle is more effective at cleaning than the other products in the Fairy range;
- Miracle is more effective at cleaning than its competitors' products, including the applicant's Finish products; and
- there is a current adequate foundation in scientific knowledge for each of the above representations.
THE DECISION OF THE FEDERAL COURT
In deciding whether to grant an interim injunction, the Court will have regard to whether the applicant has established a prima facie case based on the evidence available at the time, and whether the balance of convenience favours the grant of injunctive relief.1 The assessment of these factors is interrelated. In particular, Justice Yates emphasised that where, as in this case, the practical effect of granting the interim injunction sought would be tantamount to granting final relief, it is necessary for an applicant to demonstrate "a relatively strong case".2
PRIMA FACIE CASE
In this case, the evidence adduced by the parties included evidence of performance tests conducted by the parties and independent labs retained by the parties, comparing the Miracle product to Finish and other Fairy-branded products. While Justice Yates did not consider it necessary to resolve the debate between the parties as to the reliability of these tests, he held that P&G's own testing did not demonstrate any difference in Miracle's cleaning performance compared to the Fairy "Platinum Plus" dishwashing tablets when used in a 30 minute washing cycle. Justice Yates was satisfied that based on the evidence before the Court and assessed from the perspective of an ordinary and reasonable consumer, RB had established a strong prima facie case that the overall impression of the Miracle product packaging, which included the statement "Better Cleaning^even in 30 minutes", was that Miracle was better at cleaning in a 30 minute cycle compared to all other Fairy-branded products, when this was not the case. Although the packaging included a disclaimer in the form of "^Tested vs. Fairy All in One", his Honour observed that this disclaimer was "barely visible", printed in small font and was, in any event, obscured by cardboard trays when the Miracle product was displayed on supermarket shelves. In those circumstances, his Honour held that: "...it is doubtful that, on viewing the Miracle packaging, many consumers would be cognisant of the chevron or the qualifying words...except on a studied and, I would expect, prolonged inspection of the packaging – circumstances which are unlikely to obtain in the normal shopping experience of a great many customers." RB also argued that the performance claim conveyed a representation that Miracle was better at cleaning in a 30 minute cycle than its competitor products (including RB's Finish-branded products). Justice Yates considered this aspect of RB's case was not as strong, on the basis that the performance testing evidence relied upon by P&G showed that Miracle had overall better cleaning performance than RB's Ultimate Plus and Ultimate Pro products in a 30 minute wash cycle. Accordingly, he was not persuaded that interim injunctive relief was appropriate in respect of this aspect of RB's case.
BALANCE OF CONVENIENCE
The balance of convenience (i.e. the balance between the downside to the applicant of not obtaining a preliminary injunction, and the downside to the respondent if a preliminary injunction is granted) was finely balanced between the parties in this case, with RB accepting that the difference in their positions was "imperceptible". Both parties sought to argue that they would suffer significant incalculable and irreparable damage if the Court ruled against them. Among other things, RB argued that if the injunction were not granted, it would suffer damage as a result of lost sales and significant damage to Finish's brand equity. RB alleged that:
- the increased promotion, prominence and shelf space dedicated to Miracle would create a stronger brand impression for Fairy and reduce the brand impression of other brands, such as Finish, which would adversely affect sales of Finish products;
- consumers are likely to view the Finish brand as less innovative and therefore inferior to Fairy; and
- consumers may be enticed to switch to the Fairy brand, thereby damaging brand loyalty that can be difficult to repair.
P&G's arguments focussed on the impact of an injunction on its relationship with major customers who were launching Miracle as part of their annual new product cycle, and the fact that the injunction sought to restrain the launch of a new product. Justice Yates accepted that P&G would suffer a number of commercial consequences flowing from granting the relief sought, namely:
- disruption and damage to the business of its customers, which are major supermarket chains such as Woolworths or Coles, and damage to P&G's relationship with them;
- difficulty of assessing counterfactuals, including in quantifying the likely market share and volume of sales of the new Miracle product;
- disruption to planned promotional activities, including wasted time and costs;
- damage to customer perception of the Miracle product;
- the need to destroy existing stock due to the inability of repackaging or modifying the existing packaging of the product, and the lengthy delay in supplying the product in new packaging; and
- loss of P&G's first-mover advantage, including lost sales in respect of Miracle.
Significantly, Justice Yates also referred to the need to consider the public interest in claims based on the ACL, given the objective and purpose of the legislation is directed to consumer protection. His Honour held that, in the circumstances of this case, the public interest of protecting consumers from being misled by representations on the product packaging prevailed over the private interests of the parties. Ultimately, Justice Yates determined that the strength of RB's case and the public interest considerations weighed in favour of granting the injunction. Accordingly, the Court made orders restraining P&G from representing that its Miracle product is better at cleaning in a 30 minute dishwashing cycle than the Fairy "Platinum Plus" dishwashing tablets. The interim injunction was granted upon RB giving the "usual undertaking to as to damages". This is an undertaking to compensate P&G (or any third party) for any loss resulting from the injunction if RB ultimately fails at the final hearing.
1. Australian Broadcasting Corporation v O'Neill  HCA 46; 227 CLR 57 at -.
2. RB (Hygiene Home) Australia Pty Ltd v Procter & Gamble Australia Pty Limited  FCA 383 at , citing Samsung Electronics Co Ltd v Apple Inc  FCAFC 156; 217 FCR 238 at .
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