RESTRICTED DISTRIBUTTON IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No.G598 of 1986 ) GENERAL DIVISTON ) BETWEEN : BENTLEY FRAGRANCES PTY. LIMITED Applicant AND: DEMTEL INTERNATIONAL FTY. LIMITED Respondent IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No.G612 of 1986 GENERAL DIVISION BETWEEN: JUVENA COSMETICS PTY. LIMITED Applicant AND: DEMTEL INTERNATIONAL FTY. LIMITED Respondent CORAM: FOX J. DATE: 18 DECEMBER 1986 REASONS FOR JUDGMENT (EX TEMPORE) EOX J. These are two applications for interlocutory injunctions which are being heard together by consent on the basis that the evidence in one is to be evidence in the other. They both relate to the same subject matter, which is a threatened repeat of a television advertisement by the respondent for perfumes which it sells direct to the public under the name "Paul Gireau of Balmain". The problem which arises is that the advertisement adopted by the respondent uses products of the applicants as aids fo the sale of its own products. One of the applicants is concerned with a perfume called "Opium", the other with a perfume called "Arpege", both well-known vroeducts on the market and available widely bv retail. There can be some debate as to what precisely the respondent is representing by the advertisement, but it seems to me to be plain enough that it is claiming that it can provide to purchasers products which are virtually indistinqguishable in fragrance from the "Opium" and "Arpeqe" products respectively. Tt associates those claims with the fact that its products sell very much more cheaply than do the products I have mentioned. I eee ee ee ee - 3. should say. for completeness, that it not only relates its advertisement tc "Opium" and "Arpege" perfumes but also, and in the same way, to "Miss Dior", "Chanel No. 5" and "Joy" perfumes. The advertisement challenges any viewer to distinguish between the respondent's products and those of the applicants. and the other products which I have just mentioned. It is claimed that nobody has yet found any distinction and so recovered the purchase price, which the respondent offers to return if a difference can be detected. The principal complaint, although it merges into other considerations, is that the respondent is asserting in the advertisement that its products are the same as the preducts which I have mentioned, or so nearly the same as to he indistinquishable. That is said to be misleading and deceptive conduct on the respondent's part giving rise to the application of s.52 of the Trade Practices Act 1974. T am not sure whether other provisions of the Trade Practices Act are also invoked, but T have not heard any debate upon them. The advertisement in question was last shown on television in the middle of September of this vear and there were sent sometime in October complaints by solicitors for the respective applicants about the advertisements containing threats to seek relief in Court if appropriate undertakings were not given. The respondent told the applicants in writing that it t | . | eet ane a eS a a ey ee ett, 4. would not repeat the advertisements without giving them notice. In one case this assurance was qualified by a statement that no particular period of notice was promised. No further advertisements were inserted and if was not until vesterday that notice was received that there was an intention to repeat the same advertisement tonight, and. one assumes, on several nights thereafter. I gather from the evidence that the intention to advertise at this time had been in the mind of the respondent for many months because it is said in one affidavit that the advertising time had been booked for about a year. Tt was apparent that the giving cf the very snort notice would make necessary a hurried application to this Court. with the consequential need for the Court to dispose of it as a matter of urgency. I am well satisfied that there is a serious issue to he tried under s.52 of the Act. justifving interlocutorv relief. The other matter which it is apparent must he of importance, although the time available to present evidence on it has been very short, is that of the balance of convenience. It is said by the applicants that their reputation will suffer if an advertisement is published, which asserts that the perfumes called "Paul Gireau of Balmain" are indistinguishable or a co virtually so from those of the applicants. These latter of course have a long established reputation in the field. I do not think that one can leave aside the question of relative cheapness, which is associated with the representation. What is being said is in effect that "Paul Gireau of Balmain" has and will supply identical, or nearly identical, perfumes ata much lower price. The amount of the damage to the applicants which would arise in this way is of course problematical and not capable of quantification. One does not know what it midcht amount to. However, there is evidence that there will be damage, and it may be considerable. The respondent says that it is onlv throudh television advertisements that it is able to sell, or at least sell in anv number, that it is in the season just before Christmas when most sales take place, and that if the advertisements are stopped it might be left with a large stock on hand, at least for the time being. The loss associated with having to cancel the television advertisements is also mentioned and the cancellation figure is put at a fiqure between $2,000 and $6,000. There has not, of course, been any opportunity to test evidence about those sums, although in all the circumstances it would be surprising indeed if some warning had not already been sent to the television Company. It seems to me that I should net regard the balance of convenience as favouring the respondent. The losses on hoth gides are problematical. One does not know what they will be, but one cannot in a final summation of the matter avoid being influenced by the two related matters already mentioned, namely, the very short notice that was qiven to the applicants to enable them to make the application, and the fact that the television time was booked a long time aqo. The respondent will, of course, be substantially; protected by undertakings as to damages, whereas if the television advertisements were shown it would be a matter of some difficulty for the applicants to establish the amount of the damage suffered frem their presentation. I recoqnize that there will be some difficulty in establishing the full damage of the respondent, but I must confess that I am not as sympathetic to its position as otherwise I might be, for reasons that I have just stated. In short, there seems to me to be a serious issue to be tried and a balance of convenience in favour of the applicant which includes behaviour on the part of the respondent which does not encourage one to tip the balance in its favour. When I say tip the balance, I do not mean to suggest that I have any serious doubt about the effect of the advertisement or the intention with which they were made. - I am therefore 7. prepared to grant usual undertaking as to damages. handed up and orders then made). G598 of 1986 Counsel for applicant: Solicitors for applicant: G61l2 of 1986 Counsel for applicant: Solicitors for applicant: Counsel for respondent: Solicitors for respondent: Date of hearing: infunctions on the {Short minutes were later I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment herein of nis Honour Mr. Justice Fox. 1S aren Associate Date: 18 December 1986 Mr S. D. Robb Messrs Baker & McKenzie Mr P. M. Wood . Messrs.Freehill Hollingdale & Page Mr A. J. Sullivan Messrs Moray & Aqnew Sydney; 18 December 1986