Sterling Winthrop Pty Ltd v The Boots Company (Australia) Pty Ltd [1995] FCA 664

CATCHWORDS TRADE PRACTICES - misleading or deceptive conduct - advertising campaign for pain relieving drug - application for interlocutory relief - whether use of quotation from scientific paper is capable of being misleading or deceptive as a half-truth - whether use of the word "everyday" is capable of being misleading or deceptive - whether claims of "equal tolerability" capable of being misleading or deceptive - principles to be applied to comparative advertising INTERLOCUTORY INJUNCTIONS - whether a serious question to be tried - balance of convenience - effect of injunction on momentum of advertising campaign - effect of applicant remaining free to profit from powerful brand name - relevance of public health. EQUITY - "unclean hands" - whether applicant taking wrongful advantage of its market power for the purpose of increasing its market share. Trade Practices Act 1974 (Cth) ss 46, 80, 82, 87 Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) ATPR 41-030 State Government Insurance Commission v JM Insurance Pty Ltd (1984) ATPR 40-465 Hoover (Australia) Pty Ltd v Email Ltd (1991) ATPR 41-149 Fraser v NRMA Holdings Ltd (1994) ATPR 41-346 Colgate-Palmolive Pty Ltd v Rexona Pty Ltd (1981) ATPR 40-242; 58 FLR 391 Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40-918 Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) ATPR 40-654 Sterling Pharmaceuticals (NZ) Ltd v Boots Co (NZ) Ltd (No 2) [1991] 2 NZLR 634 Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 STERLING WINTHROP PTY LIMITED v THE BOOTS COMPANY (AUSTRALIA) PTY LIMITED No NG 605 of 1995 Tamberlin J Sydney 23 August 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 605 of 1995 GENERAL DIVISION ) BETWEEN: STERLING WINTHROP PTY LIMITED Applicant AND: THE BOOTS COMPANY (AUSTRALIA) PTY LIMITED Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 23 AUGUST 1995 MINUTE OF ORDERS Upon the applicant by its counsel giving the usual undertaking as to damages: THE COURT ORDERS THAT: 1. Until further order of the Court, the respondent by itself, its servants or agents or otherwise be restrained from, in trade or commerce, publishing or causing or permitting to be published any advertisement in the form or substantially in the form of any of the three advertisements copies of which are annexed to the application and marked "Advertisement (1)", "Advertisement (2)" and "Advertisement (3)" respectively ("the advertisements"). 2. The respondent forthwith take such steps as are practicable to prevent publication of the advertisements in any journals in which such advertisements have been placed and that the respondent continue to take such steps during the currency of Order 1. 3. The costs of the application for interlocutory relief be the applicant's costs in the proceedings. THE COURT DIRECTS: 4. The applicant to file and serve a statement of claim by 25 August 1995. 5. The respondent to file and serve its defence and any cross-claim by 1 September 1995. 6. The applicant to file and serve any reply and its defence to any cross-claim by 8 September 1995. 7. The respondent to file and serve any reply to the defence to any cross-claim by 14 September 1995. 8. The proceedings to be stood over to 22 September 1995 for directions. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.