Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: cited
I will not repeat here the detailed evidence of the parties concerning the performance characteristics of the two products over a range of different stains and textiles. It suffices to say that it is not practicable at the present time to form any confident prediction as to the likely outcome or strength of the case brought by Unilever. To properly consider the detailed evidence filed (and any further evidence which may become available), it will be necessary to have the benefit of interlocutory processes, cross-examination and addresses by counsel. At this time, however, I am persuaded that the application brought by Unilever is sufficient to raise a prima facie case, as that term is defined by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at 82. 12 Cussons has brought a cross-claim against Unilever. The cross-claim relates to two of Unilever's laundry liquid wash products, namely, Omo Small &amp; Mighty and "Surf Small &amp; Mighty". Both of these products are marketed in bottles which display the words "3X Concentrate". Both bottles display these words under the name of the product and use a silhouette to demonstrate that each product is equivalent to older products marketed by Unilever which were 1.4L in size. In addition, in the case of Surf Small &amp; Mighty, alongside the words "3X Concentrate", the words "As many washes as Surf 1.4L" appear. 13 Cussons contends that these words which appear on Omo Small &amp; Mighty and Surf Small &amp; Mighty represent that the liquids in those products are three times as concentrated as the liquids in Unilever's older laundry liquid wash products (which, being 1.4L, were also approximately three times the size). These words, it is said, have the effect of representing that, at recommended doses, the performance qualities of Omo Small &amp; Mighty and Surf Small &amp; Mighty are the same as the older and larger products, whereas tests conducted on the liquids demonstrate that their characteristics do not support this representation. Accordingly, Cussons claims that the representations are misleading. 14 On the present material and submissions, it seems to me that, as a matter of construction, the representations would be taken by a consumer not so much as indicating that the precise performance qualities of the liquids are identical or that the chemical composition or characteristics of the liquids are identical to the liquids in the larger containers, but rather go to the result that the same number of washes can be obtained from the smaller Omo Small &amp; Mighty and Surf Small &amp; Mighty as can be obtained from the liquids in the larger containers if the recommended dosages are used. For instance, Surf Small &amp; Mighty describes its equivalence with the older and larger products not by reference to the inherent composition or concentration of the liquid, but by reference to the number of washes which a bottle will provide. In the case of Omo Small &amp; Mighty, however, the way in which it is said to be equivalent to the older and larger products is less clear, and I think it unlikely that a consumer will closely study the back of the bottle to calculate the number of caps that are contained in the bottle, and the number of washes that it will produce. The emphasis for which Unilever contends relates to the end result of the use of the products, namely, the number of washes produced rather than on the character or concentration of the liquid. This, Unilever says, is what the consumer would really be interested to know. While Unilever's position on this point is arguable, in my view Cussons has raised a prima facie case within the meaning of Australian Broadcasting Corporation 227 CLR at 82. Whether Cussons' argument can be said to be strong or weak is not a matter which can be decided on the material filed to date. 15 The parties also addressed submissions to the balance of convenience in granting or refusing interlocutory relief. In my view, provided that an early date for final hearing is fixed, and even though the parties have established their respective prima facie cases, there is nothing in the balance of convenience which requires that the interlocutory relief sought by either party should be granted. 16 Omo Small &amp; Mighty was launched in Australia in early February 2008 and national advertising commenced on 24 February 2008. It now has 9% of all Australian liquid wash sales. Unilever says that Cussons, having conducted its tests quite some time ago in February 2008, has delayed the bringing of its cross-claim for the tactical purposes of ensuring that its product, Radiant micro Max, had entered the market before any litigation commenced. Unilever says that Cussons' deliberate delay points to disentitling conduct which should be taken into account in assessing the balance of convenience of awarding interlocutory relief. Unilever submits that the grant of interlocutory relief against it will disrupt its marketing of an innovative product, will cause substantial loss as a result of any recall, and will damage their brand in intangible ways which cannot be satisfied by a pecuniary award on a final hearing (such as by damaging relations with suppliers and losing shelf space in retailers' stores). Accordingly, Unilever resists the grant of the interlocutory orders sought by Cussons on its cross-claim.