FEDERAL COURT OF AUSTRALIA Energizer Australia Pty Limited v Gillette Australia Pty Limited [2002] FCA 321 TRADE PRACTICES – misleading and deceptive conduct – comparative advertising by manufacturer by point of sale material located in premises of retailers – injunction already granted to restrain certain television advertising prior to placement of point of sale material – injunction subsequently granted restraining distribution to retail establishments of further point of sale material – mandatory interlocutory injunction to remove existing point of sale from retail establishments withheld in exercise of discretion. Trade Practices Act 1974 (Cth) s 51A, 52, 53 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 referred to Fletcher Challenge Limited v Fletcher Challenge Pty Limited (1981) 1 NSWLR 196 referred to Snowave Pty Limited v Wanderers Ski Holidays & Travel Pty Limited (1996) 34 IPR 577 referred to CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 8 IPR 473 referred to Biddulph & Finch Publishing Pty Ltd v de Vries & de Vries t/as Pandamus Press (1998) 43 IPR 144 cited Effluent Disposal Limited v Midlands Effluent Disposal Limited [1970] RPC 238 referred to Auckland Harbour Cruise Co Ltd v Fullers Captain Cook Cruises Ltd (1986) 8 IPR 185 referred to Parker & Son (Reading) Limited v Parker [1965] RPC 323 referred to ENERGIZER AUSTRALIA PTY LIMITED v GILLETTE AUSTRALIA PTY LIMITED N1560 OF 2001 CONTI J 22 MARCH 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1560 OF 2001 BETWEEN: ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) APPLICANT AND: GILLETTE AUSTRALIA PTY LIMITED (ACN 000 011 914) RESPONDENT JUDGE: CONTI J DATE OF ORDER: 22 MARCH 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Applicant Energizer Australia Pty Limited having given the usual undertaking as to damages, the Respondent Gillette Australia Pty Limited be restrained until the final hearing of the proceedings or further order from further distributing to retail outlets in Australia point of sale material relating to the promotion of Duracell batteries comprising base stickers, generic header cards, shelf wobblers, bunny posters, mini pallet header cards and double kick header cards, being the material described as "POS Material" in the Reasons for Judgment. 2. Liberty to either party to apply on two days' notice to the other as to the costs of the proceedings for the relief sought subsequently to the making of the orders herein on 24 December 2001, and as to the content of Order 1 in the light of the Reasons for Judgment and generally in relation to the issues raised in the present proceedings. 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 N1560 OF 2001 BETWEEN: ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) APPLICANT AND: GILLETTE AUSTRALIA PTY LIMITED (ACN 000 011 914) RESPONDENT JUDGE: CONTI J DATE: 22 MARCH 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These Reasons for Judgment relate to further injunction proceedings which have taken place at the instance of the Applicant Energizer Australia Pty Limited ("Energizer") against the Respondent Gillette Australia Pty Limited ("Gillette"), in the context of earlier injunction proceedings which were resolved on 24 December 2001 by the continuation of an order in favour of Energizer against Gillette first made on 23 November 2001, being an order having the effect of permanently restraining Gillette from causing to be televised the commercial advertisement designated in my Reasons for Judgment of 24 December 2001 as the "first" or "Bunny" advertisement. An appeal has been lodged by Gillette against the grant of that injunction, which is due to be heard by a Full Federal Court in June 2002. The present application seeks to restrain Gillette from distributing or causing to be distributed certain Duracell point of sale material ("POS Material"), or alternatively any other promotional material which contains a statement substantially to the effect that "Duracell lasts up to 3 times longer" than certain other batteries, without making adequate or appropriate qualification of the circumstances in which that statement may be correct (or at least more correct), and also to restrain Gillette from distributing or causing to be distributed any matter which is substantially identical to the POS Material. Additionally by the present application, Energizer seeks an order requiring Gillette to take such steps as are necessary to withdraw, or to cause to be withdrawn, the POS Material and any such other promotional material currently in the marketplace, and within 14 days after withdrawal to provide an affidavit as to compliance with such steps. 2 The POS Material, coloured reproductions whereof are attached to the Further Amended Statement of Claim ("S/C"), include the following material identified in Schedule A-1 thereto: (i) A larger coloured cardboard poster depicting the traditional Duracell pink coloured bunny, and containing prominently the words LASTS UP TO 3 TIMES LONGER than Eveready Super Heavy Duty AA, AAA, C & D sizes; (ii) A smaller coloured cardboard poster appearing below six rows of displayed DURACELL batteries, depicting the same Duracell bunny, and the same words in comparably smaller, albeit still relatively prominent form; (iii) A tag for attachment to display stands or shelves for Duracell batteries, containing the same Duracell bunny, and the same words in comparably smaller size again, albeit in still relatively prominent form, and with the addition of "DURACELL" appearing across the body of the bunny. 3 The affidavit of Kerryn Jane Ross, a Gillette Business Manager sworn on 7 March 2002, discloses that the totality of the POS Material, inclusive of what I have just described, takes the form of what she describes more comprehensively as base stickers, generic header cards, shelf wobblers, bunny posters, mini pallet header cards and double kick header cards, which include the three items attached to the S/C, as well as comprising additional display material. My references hereafter to "POS Material" in these Reasons for Judgment shall extend to all such six categories of promotional material. 4 Energizer propounds against Gillette the same causes of action concerning the POS Material as in the earlier proceedings in relation to the "Bunny" advertisement, that is to say, contravention of ss 51A, 52 and 53 of the Trade Practices Act 1974 (Cth). It is asserted that the POS Material is distributed for use in promotion of Gillette's batteries in the context of retail locations. From the coloured reproductions of the POS Material in evidence, there may be readily identified the same rabbit bunny and rabbit bunny's features displayed in the Bunny television advertisement the subject of the earlier injunction proceedings. 5 The Reasons for Judgment in the earlier injunction proceedings referred to the following summarised factual circumstances concerning the batteries produced by Energizer and Gillette respectively and supplied to the retail markets in Australia for activating consumer electronic devices: [2-3] The size descriptions of the batteries supplied by both Energizer and Gillette comprise AA, AAA, C and D. [4-6] Those battery products supplied under Energizer's brand names "Energizer" and "Eveready" range in chemical composition from alkaline as the premium, higher performing batteries to lower performing batteries containing carbon zinc; the carbon zinc batteries carry the brand descriptions respectively of Super Heavy, Heavy Duty and General Purpose. [7-8] The more limited range of battery personal lighting products supplied under Gillette's brand name "Duracell", comprise alkaline as their chemical composition; Gillette no longer manufactures carbon zinc batteries. [15] Alkaline batteries last longer than carbon zinc batteries and are more expensive to manufacture (consequently the price charged for the former exceeds the latter), as found in [37(ii)] of my previous Reasons for Judgment, a proposition which Gillette did not gainsay, as appears from [70] thereof). [16] Carbon zinc and alkaline batteries are capable of use interchangeably, and thus in the same personal lighting devices, though alkaline batteries store more energy than carbon zinc batteries of equivalent size; carbon zinc batteries comprise just under 50% of the Australian battery market, calculated by volume of cells sold. From the foregoing material in summary, I draw the inference that Gillette was seeking to gain in the marketplace at the expense of Eveready brand carbon zinc range of batteries. 6 The televised so-called Bunny advertisement the subject of the injunction which I granted in favour of Energizer against Duracell, as I described more fully in [17] of my previous Reasons for Judgment, depicted four "bunny" rabbits engaged in a running race undertaken over an obstacle course, the winning rabbit symbolising a Duracell alkaline battery, and being portrayed in the same pink colour and appearance featured frequently in previous television and other advertising promotions of Duracell batteries undertaken from about 1981, and three losing rabbits each purporting to symbolise other batteries, and in particular Eveready Super Heavy Duty batteries, whether in sizes AA, AAA, C or D albeit that each of the losing rabbits competed individually in sequence against the sole Duracell bunny for only one-third of the entire race distance, and even in each of those circumstances were uncompetitive over each of those successive shorter distances. 7 The text of the voiceover sound in the Bunny advertisement was as follows, as set out in [17] of my earlier Reasons for Judgment: " Sentences Transcript of Voiceover and Text 1 Which lasts longer? 2 Duracell alkaline or Eveready Super Heavy Duty batteries? 3 While Duracell keeps on running the Super Heavy Duty battery just can't keep up 4 Uh oh, no matter what they try, it won't help 5 With up to three times more power TEXT ON SCREEN : IN AA, AAA, C & D SIZES ONLY 6 Duracell always wins TEXT ON SCREEN : DURACELL LASTS UP TO 3 TIMES LONGER TEXT ON SCREEN : IN AA, AAA, C & D SIZES ONLY " 8 In [30] of my earlier Reasons for Judgment, I summarised the testimony of Energizer's Marketing Manager Mr Carter to the effect that upon the basis of results of tests conducted at Energizer's various manufacturing plants, the following thesis was able to be propounded: "(a) Duracell alkaline batteries do not last three times longer than other consumer batteries, including the Energizer Advanced Formula alkaline batteries; (b) Duracell alkaline batteries do not last up to three times longer than all Eveready batteries, including Eveready Gold alkaline batteries; and (c) Duracell alkaline batteries do not last up to three times longer than all Eveready batteries in all the battery sizes in the first advertisement." 9 Subsequently in [35] of my earlier Reasons for Judgment, I summarised the following testimony of an Energizer expert Mr Axford, based on tests conducted in Energizer's overseas manufacturing plants, namely that it could not be asserted accurately that Duracell alkaline batteries: "(a) last three times longer than the Eveready SHD carbon zinc batteries in all of the battery sizes referred to in the Test Table; (b) last three times longer than the Eveready Gold alkaline batteries in all of the battery sizes referred to in the Test Table; (c) last three times longer than the Energizer alkaline batteries in all of the battery sizes referred to in the Test Table; and (d) last three times longer than the Panasonic alkaline batteries in all of the battery sizes referred to in the Test Table." 10 No evidence was submitted by Gillette to gainsay the foregoing propositions of Messrs Carter and Axford. Instead, the course mainly adopted in the proceedings was to propound successive changes to the Bunny advertisement by the interposition of words on the screen thereof, to the extent appearing in [25-27] of my previous Reasons for Judgment. I accepted at least the following propositions of Energizer recorded in my previous Reasons for Judgment at [59] thereof: (i) the two Energizer alkaline brands and the Duracell alkaline brand are each comparable in performance; (ii) alkaline batteries are significantly more expensive than carbon zinc batteries, and understandably so since the former were subjected to a higher cost of production; (iii) the alkaline and carbon zinc AA size batteries throughout the Energizer and Gillette ranges are identical in shape and fit the same devices; (iv) there is no externally observable physical difference between a carbon zinc and an alkaline battery to indicate any difference in performance; and (v) all common size batteries are sold in similar "see-through" packaging, regardless of their internal composition. 11 After explaining the consequences adversely to Gillette flowing from the findings, and the reasons therefore, in paragraphs [60-74] of my previous Reasons for Judgment, I enjoined further television broadcasting of the Bunny advertisement in the following terms: "The respondent Gillette Australia Pty Limited be permanently restrained from causing to be televised the commercial described in the Reasons for Judgment as to the first or "Bunny Advertisement". 12 The POS Material maintains the unqualified representation of the Bunny television advertising to the effect that the Duracell battery "lasts up to 3 times longer than Eveready Super Heavy Duty AA, AAA, C and D sizes", notwithstanding that the unqualified comparison thereby made in relation to Duracell's major or chief competitor's batteries is not in truth a comparison of like with like. The POS Material was obviously designed to work in tandem with the false and misleading representations of the Bunny television advertising momentum, and although that television advertising ceased on 23 November 2001, when Whitlam J first granted an interlocutory injunction in relation thereto, the appearance on retail sites of the POS Material was proximate in point of time to the Bunny television advertising momentum to the extent later appearing in these Reasons for Judgment. That is because POS Material repeats the unqualified theme "Lasts up to 3 times longer than Eveready Super Heavy Duty AA, AAA, C and D sizes" in the pictorial context of Duracell's traditional pink bunny symbol. 13 It follows in my opinion that the POS Material is also misleading and deceptive in contravention of ss 52 and 53(a) of the Trade Practices Act, and Gillette should in principle be enjoined from further distribution thereof to retail outlets. The more critical issue arising however is whether the injunction should be so framed that Gillette becomes obliged, whether explicitly or implicitly, to cause or procure that the POS Material, which has been already delivered to retail outlets, be withdrawn from display to the public. It was the latter relief which occupied the second hearing of the proceedings conducted before me on 14 March 2002. The resolution of that issue largely depends upon the activities of Gillette subsequent to the grant of the injunction on 23 November 2001, in the context of what had taken place prior thereto for the planned distribution of the POS Material in the marketplace. Whether the injunction should extend in principle to the physical removal of POS Material from all retail outlets 14 The testimony adduced by Gillette at the hearing was mainly provided by Ms K J Ross, a Gillette Business Manager. She described the 5 key retail channels through which Duracell sold its batteries, namely grocery stores, mass merchants, pharmacies, electrical departments and other retail outlets, and the processes whereby the POS Material came to be distributed to those retail channels, which was initiated as follows: (i) dispatch of pre-packed display bins and accompanying POS material directly to retail customers; (ii) dispatch by its distribution arm Mannway Pty Limited ("Mannway") to distributors for placement in retail stores; (iii) dispatch by Mannway directly to retail customers. 15 During the period 12-15 November 2001, Mannway received 20,000 units of POS Material pursuant to a Mannway order for sufficient supply for a minimum of 10 months, with a view to being placed on display for up to 12 months. The 20,000 units divided as follows: (i) base stickers – 2000 units; (ii) generic header cards – 1000 units; (iii) shelf wobblers – 10,000 units; (iv) bunny posters – 5000 units; (v) mini-pallet header cards – 1000 units; (vi) double kick header cards – 1000 units. 16 Ms Ross further testified that battery sales usually reach their peak at the Christmas festive season. For this reason, Gillette customarily places more displays in-store during November and December than at any other time of the year; Easter is also traditionally a peak time for the sale of batteries, as people stock up in preparation for Easter holidays. For this reason, Gillette also focuses on having display bins and accompanying POS Material distributed as widely as possible in the lead-up time to Easter. 17 Pre-packed display bins and different POS material sent by Gillette to its retail customers in November and December 2001, and in the first half of January 2002, had been packed in September and October 2001. Due to delays in finalising the campaign production and distribution of the new POS Material, that is to say, the POS Material now the subject of these Reasons for Judgment, the same was not available for dispatch until 12 November 2001, and accordingly the abovementioned pre-packed bins were not accompanied by the new POS Material, and the same was distributed later than had been planned; nevertheless substantial quantities of the new POS Material were distributed at a sales representative level after 12 November 2001 and in December 2001. Thus: (i) in the latter half of January 2002, 674 pre-packed display bins with accompanying POS Material were sent by Gillette directly to its retail customers nationwide, including 379 to Woolworths and 294 to Kmart (being 2 each to 147 stores); and (ii) in February 2002, 2008 pre-packed display bins and accompanying POS Material were sent by Gillette directly to its retail customers. 18 Ms Ross said that in her experience, the stores which were sent pre-packed bins with accompanying POS Materials would have displayed the material, on average, within 1 to 2 weeks of receipt thereof, and in her experience, and for the reasons she stated, the majority of store managers would have put the material for display in-store. 19 Ms Ross further said that Gillette's sales representative and other distributors also placed POS Material into stores to which pre-packed bins have not been sent through those channels, and that sales representatives were encouraged to place additional POS Material into stores which receive the pre-packed bins with point of sale material originally attached to the bins. Gillette has a policy of ensuring that display bins are in place, and point of sale material displayed in accordance with promotional programs. 20 As to specific distributions of the subject POS Material which would have taken place at the material times, Ms Ross provided the following further information: (i) substantial quantities thereof would have been supplied by Mannway in the period of time following 12 November 2001; (ii) because January is traditionally a month when the sales representatives are encouraged to take holidays, there would have been a significant downturn in the quantities and pace of distributions during that time; (iii) the following pieces of POS Material were sent by Gillette to sales representatives and distributors nationwide, namely 1840 in November 2001, 1669 in December 2001, 1116 in January 2002 and 374 in February 2002; and (iv) in the normal course, Gillette sales representatives distribute POS Materials to large retail stores within 1 to 6 weeks, and to smaller stores in the major cities and country areas within 6 to 12 weeks of receipt thereof. 21 Ms Ross provided details of the number of units of POS Material held by Mannway as at 26 February 2002, which indicated that by that time, 32% of the POS Material delivered to Mannway had been distributed to retail outlets 22 Ms Ross further testified in chief that on 16 January 2001, she sent an internal memorandum to Gillette's sales representatives and informed them of the permanent injunction made by this Court on 24 December 2001 in relation to the Bunny advertisement. She was aware of the circumstance that no injunction had been made in relation to the Brand Power advertisement, nor in relation to any point of sale material, and the memorandum encouraged the sales representatives to keep up distribution of the POS Material into stores. The Brand Power television advertisement is apparently still being broadcast by Gillette. 23 Gillette's case as to the financial hardship to be occasioned by it, directly and indirectly, by an order requiring Gillette to remove from stores the POS Material presently in place, was said by Ms Ross to be as follows: (i) loss of business indirectly across the board in relation to Gillette's range of products, including Gillette blades and razors, personal care products and Oral B and Braun products; (ii) the absence of any other kind of point of sale material being on hand, and not being available "at the earliest" until mid-way through April, which would mean no such material would be available over the Easter period, a major retailing period of time; (iii) it would not be until mid-June before any pre-packs of new POS Material could be received by retail stores; (iv) the removal of POS Material pursuant to an injunction would divert Gillette's field force from their responsibilities in relation to non-Duracell Gillette brands; (v) the removal would occasion a detrimental effect on the relationship between Gillette's field force and its store managers, and upon Gillette's reputation among Australian retailers, and be demoralising to sales representatives with indirect financial consequences; and (vi) to avoid the cost and expense of returning POS Material to Gillette's warehouse in Victoria, Gillette would need to instruct its field force to destroy the same. 24 Other testimony was provided by Gillette by employers, which may be summarised as follows: (i) the Territory Manager for part of the Brisbane region ordered a quantity of POS Material from Mannway in early November and December 2001, most of which was distributed or put in place before Christmas 2001; (ii) the Gillette Territory Manager for the Gold Coast and Northern Rivers areas of Queensland testified to similar effect, and also made allegations as to damaging or removing of POS Material, both before and after Christmas 2001, and as to the alleged involvement of Energizer's representatives in that process; and (iii) the Gillette Territory Manager for Sydney South made similar adverse allegations as to what she experienced in the area which she serviced. 25 Upon the basis of the general body of evidence summarised above, Gillette submitted that an obligation imposed upon it to recall the POS Material would be tantamount to the grant of adverse final relief, with wider serious implications to its business by reason of the prospect of delayed replacement of promotional material for some time, and further would be productive of negative impacts upon its relationships of its own field force with store managers Australia-wide, as well as causing the diversion of its field force from their responsibilities in relation to non-Duracell brands. In summary, any form of mandatory injunction was asserted by Gillette to be tantamount to the grant of final relief, notwithstanding the pendency of the appeal from my final order of 24 December 2001 due to be heard in June 2002. Gillette submitted in effect that Energizer should have anticipated that new point of sale material would replace the existing point of sale material, to coincide with the televising of the Bunny advertisement (and the Brand Power advertisement), but did not seek to enjoin the same, and in any event, Gillette points to the content of the Brand Power advertisement, in relation to which no injunctive relief, interim or final was ever granted. 26 Energizer has pointed to the following circumstances inter alia bearing upon the exercise of discretion in granting mandatory injunctive relief in relation to the POS Material, being circumstances largely emerging from the cross-examination of Ms Ross: (i) The POS Material was not used on the all important display bins for the key Christmas period; the distribution of the new bins containing the POS Material did not commence until the latter half of January 2002, by which time of course the permanent injunction had been in place for some three weeks. (ii) Those circumstances were consistent with the testimony of Mr Pattinson, Energizer's Marketing Manager, that it was not until shortly before Energizer's letter of demand of 11 February 2002 that the POS Material started to emerge in public, and also with the absence of any "real presence" of POS Material (other than the new bins) prior to the final hearing on 6 and 7 December 2001 which culminated in the grant of the permanent injunction of 24 December 2001. (iii) In any event, Gillette adduced no evidence as to the distribution of the POS Material in the States of Australia, other than in New South Wales and Queensland, and in the latter circumstances, specific evidence as to areas of actual distribution is limited. (iv) Energizer's contention that the substantial distribution of the POS Material had been a post judgment event was supportable by the evidence. (v) In any event, the evidence demonstrated that in major stores located in important centres in Sydney, no POS Material was being used at all. (vi) Ms Ross' original claim as to a period of four weeks being required to print new point of sale material should not be accepted; she had made insufficient enquiries of the existing printer ability to produce the necessary replacement material, and as to the time reprinting would occur, and in any event, the estimate of 4 weeks for printing the replacement was overstated. (vii) The time needed for recall had been exaggerated in the evidence in chief. 27 Energizer further submitted that the impact of a POS Material recall on Gillette employee morale was irrelevant to the grant of injunctive relief, and in any event Energizer pointed to Ms Ross' concession in cross-examination that Gillette employees could combine other selling activities with the work involved in the recall of the POS Material. 28 There is something to be said in favour of the view that in the events which have happened, Gillette assumed the risk, from the time interlocutory relief was first granted on 23 November 2001, that the POS Material would subsequently be made the subject of injunctive relief, once the POS Material emerged in the marketplace. Moreover I do not think that in the circumstances which have happened, Energizer can be criticised for not addressing the potential emergence of point of sale material before the conclusion of the injunction proceedings. Nor do I think that there is any substance, in terms of principle, in the case advanced by Gillette for the exercise of discretion in favour of Gillette, by reference to the apprehensions of Ms Ross as to potential damage to employee morale. Nevertheless having given the matter much thought, I would not favour the exercise of my discretion in favour of the grant of what would be on correct analysis a mandatory interlocutory injunction, in the more traditional sense, attended by circumstances of the kind which have tended not to engender the occurrence of judicial intervention. 29 Energizer has correctly submitted that a mandatory interlocutory injunction application is not determined by special rules, and has referred me to dictum of Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502-503, where his Honour cited authority for the propositions, inter alia, that "semantic arguments over whether the injunction as formulated can properly be classified as mandatory or prohibitory are barren" and that "[t]he question of substance is whether the granting of the injunction would carry the higher risk of injustice which is normally associated with the grant of mandatory injunction", and further that [i]t has long been the case that interlocutory mandatory injunctions would be more likely to issue where the defendant was compelled, not to embark upon a fresh course of conduct, but, as here, to revert to a course of conduct pursued before the occurrence of the acts or omissions that provoked the litigation". In that context, Energizer exemplified the circumstances of an order to change a registered name (Fletcher Challenge Limited v Fletcher Challenge Pty Limited (1981) 1 NSWLR 196 at 208), and another to establish a telephone message redirecting business to the applicant for relief (Snowave Pty Limited v Wanderers Ski Holidays & Travel Pty Limited (1996) 34 IPR 577 at 581), and the common circumstances of an order restraining a respondent from using a name or get up without sufficiently distinguishing the goods, where in practice, stickering or relabelling is often required (CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 8 IPR 473 at 489-490); to similar effect as in CBS was the order made by Emmett J in Biddulph & Finch Publishing Pty Ltd v de Vries & de Vries t/as Pandamus Press (1998) 43 IPR 144. 30 Energizer further submitted that in any event, the distinction between mandatory and negative injunctions is often "not clear cut". One example proffered related to the injunctions granted in the present proceedings to restrain the broadcasting of the Bunny advertisement, which effectively required steps to be taken to cause the television station to withdraw the advertisement from its schedule, and to orders which have been made restraining the use of a name, which effectively requires the person to take steps to remove the labels or signs, wherever they may be (Effluent Disposal Limited v Midlands Effluent Disposal Limited [1970] RPC 238 at 241; Auckland Harbour Cruise Co Ltd v Fullers Captain Cook Cruises Ltd (1986) 8 IPR 185 at 190-191; Parker & Son (Reading) Limited v Parker [1965] RPC 323. It was submitted that in the present case, an order restraining Gillette from making the representation contained in the point of sale material or permitting or countenancing orders to do so would be a negative injunction having the effect of requiring Gillette to cease using the instore display bins as media for the advertising contained in the point of sale material carried by the bins under the arrangements it enjoys with stores. Moreover, so Energizer further pointed out, there is nothing to prevent Gillette from re-activating the point of sale material if it is to be successful on a final hearing, and, I would add, to do so potentially at Energizer's cost pursuant to Energizer giving the usual undertaking as to damages. 31 Having given the issue much thought, I have determined to reject the making of the further order sought by Energizer to the effect that Gillette take such steps as are necessary to withdraw, or cause to be withdrawn, the POS Material and any such other promotional material currently in the marketplace. In refraining from making such mandatory order, I have taken into account the following circumstances: (i) the order would be interlocutory, and if set aside by a Full Court at the culmination of the hearing in June next, the adversely affected retailers would have no readily apparent recourse against Energizer for any economic loss conceivably sustained by any of them, nor for that matter against Gillette; (ii) there would be imponderable problems as to supervision and enforcement of the Court's order, bearing in mind the number and geographical location of potentially affected stores throughout Australia, the circumstance that the promotional material is displayed in premises of third parties, and the practical difficulty the Court would encounter in effectively supervising compliance with any such order; and (iii) the likelihood that any assessment of damages made by the Court relating to the wrongful television broadcasting of the Bunny advertisement would for all practical purposes relate indivisibly to loss also sustained by the continued existence on site of the POS Material, so that in reality, Energizer may well not suffer by the absence of any such mandatory order in any event. 32 I therefore decline to make any order that Gillette remove or cause to be removed the POS Material located in retail establishments in Australia, notwithstanding Energizer's giving of the usual undertaking as to damages. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 22 March 2002 Counsel for the Applicant: AJL Bannon SC & R Cobden Solicitor for the Applicant: Gilbert & Tobin Counsel for the Respondent: JV Nicholas SC & C Dimitriadis Solicitor for the Respondent: Allens Arthur Robinson Date of Hearing: 14 March 2002 Date of Judgment: 22 March 2002