Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 4) [1999] FCA 1824

FEDERAL COURT OF AUSTRALIA

Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [1999] FCA 1824 TRADE PRACTICES – comparative advertising – advertisement that one brand of battery "lasts four times longer" or "lasts up to four times longer" – smaller print stating "than ordinary zinc carbon batteries" – whether advertisement misleading or deceptive – identification of subject of comparison – meaning of "up to". Trade Practices Act 1974 (Cth) s 52 EVEREADY AUSTRALIA PTY LIMITED v GILLETTE AUSTRALIA PTY LIMITED NG 1205 of 1998 LINDGREN J 23 DECEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1205 OF 1998

BETWEEN: EVEREADY AUSTRALIA PTY LIMITED (ACN 003 539 026)

Applicant

AND: GILLETTE AUSTRALIA PTY LIMITED (ACN 000 011 914)

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 23 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The proceeding be listed on 9 February 2000 at 9.30 for the making of orders including orders as to costs. 2. The parties provide to the Associate to Lindgren J by 2 February 2000 agreed short minutes of the orders to be made and if agreement has not by then been reached, the forms of short minutes of orders for which they will respectively contend and outlines of their submissions in support. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1205 OF 1998

BETWEEN: EVEREADY AUSTRALIA PTY LIMITED (ACN 003 539 026)

Applicant

AND: GILLETTE AUSTRALIA PTY LIMITED (ACN 000 011 914)

Respondent

JUDGE: LINDGREN J

DATE: 23 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The parties manufacture batteries. The applicant ("Eveready") complains about a comparative advertising campaign by the respondent which sells batteries under the brand name "Duracell" (I will use the word 'Duracell' to refer to the respondent itself as well as to its batteries). Eveready's complaint arises out of three television advertisements, a form of billboard advertisement, and stickers which were attached to Duracell battery packs. 2 It will be necessary to discuss in detail the content of the advertising but for the purpose of this introduction it is adequate to think of it as an advertisement that "Duracell lasts four times longer" or "Duracell lasts up to 4 times longer". What is the meaning of "up to" four times longer in the present context? The word "longer" indicates a comparison, but a comparison with what? These two questions lie at the heart of the present case. 3 Eveready submits that Duracell's advertising would have led consumers to think that the comparison being made was between Duracell batteries and the batteries of each other manufacturer. Duracell submits that its advertising would have been understood by consumers as invoking a comparison between its batteries, which are all alkaline batteries, and zinc carbon batteries. Eveready manufactures, relevantly, both alkaline batteries and zinc carbon batteries, the former under the name "Energiser". 4 It is not in dispute · that alkaline technology is more advanced than zinc carbon technology; · that Duracell batteries, being alkaline, would, like Eveready's own Energiser batteries (being also alkaline), outlast Eveready's zinc carbon batteries, at least to some extent; · that Duracell batteries do not last four times longer than Eveready's Energiser batteries. 5 Originally, Eveready sought damages as well as declaratory and injunctive relief, but it no longer seeks damages. The television advertising took place in October and November 1998. Eveready sought interlocutory injunctive relief but Dowsett J refused that application on 3 December 1998. 6 The parties are agreed that I should not make orders at this stage but should publish these Reasons then hear the parties on the orders to be made.