Johnson & Johnson Pacific Pty Ltd v Cottons Australia Pty Ltd [1995] FCA 243

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 677 of 1994 GENERAL DIVISION ) Between: JOHNSON & JOHNSON PACIFIC PTY LIMITED Applicant And: COTTONS AUSTRALIA PTY LIMITED Respondent REASONS FOR JUDGMENT EINFELD J SYDNEY 17 FEBRUARY 1995 The applicant moves on an amended notice of motion for orders to prevent or restrain the respondent's advertising of its product in the form which the respondent has adopted and proposes to continue to adopt, and its packaging of one of its products. The matter in dispute concerns cotton tampons, a product which some seven months ago was first launched by the respondent on the Australian market. Until that time and subsequently the applicant has substantially dominated the market in tampons in Australia, producing products under two principal names, Meds and Carefree, which significantly consist of rayon or a rayon extract. The case primarily turns, especially for urgency, on the respondent's television advertisement. The evidence establishes that the respondent proposes to launch another round of its television advertising on 5 March, the advertisement having first been shown on television on 15 January this year. The respondent has apparently purchased a total air time over a three week period commencing on 5 March which will cost it some $121,000 to add to the $120,000 it has already expended on the advertisements and commercials up to the present time. Because this matter comes on for hearing so close to the proposed resumption of the advertising and because if any changes have to be made to the advertising there would need to be a lead time of at least two weeks, it is urgent that the judgment on the application for interlocutory relief in relation to the advertising be given. Having formed a clear view about the matter I propose to give judgment now without expressing totally or in perhaps the most felicitous way that would otherwise have been attempted, the brief reasons for judgment. If necessary I shall expand on these reasons in a prepared judgment at a later time. Because of the urgency this is not the time or place for a lengthy quotation of legal authority but it is clear law that comparison advertising which this commercial is must comprise close adherence to truth to pass what I described in another case: Benckiser Australia Pty Ltd v L&K Rexona Pty Ltd unreported 19 February 1993 at page 9, as the "spicy curry" of the Trade Practices Act. On the other hand, it is the Act'sintention that consumers be protected from being misled or deceived concerning matters of substance, not that they be, as I called it in the same case, "cuckolded from the day to day features, some would say ugliness, of a robust, sophisticated, competitive, pluralist market economy". The commercial which I have seen several times on video in the course of the proceedings is quite short -- I did not time it myself but I am told it takes thirty seconds. The words used are not the only things attacked by the applicant but the words are really at the heart of what is sought to be restrained. Indeed, the applicant expressly put to the Court that it has no objection to the visual presentations at all but only to the voice-overs which give meaning to and seek to draw the message from the pictures shown. The words are, and I quote: Of these three leading brands of tampons - -- the three leading brands include the two manufactured by the applicant and one other -- two are covered with a synthetic material, two use dyes to colour the cords and all three are made using some synthetic fibres. Still they are all very effective. Here's another very effective tampon. It's called Cottons because unlike the others it's made from a hundred per cent natural cotton. No dyes, no synthetics. Now you really do have a choice.