FEDERAL COURT OF AUSTRALIA Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2004] FCA 1228 GILLETTE AUSTRALIA PTY LTD v ENERGIZER AUSTRALIA PTY LTD N 1201 of 2004 WILCOX J 15 SEPTEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1201 of 2004 BETWEEN: GILLETTE AUSTRALIA PTY LTD APPLICANT AND: ENERGIZER AUSTRALIA PTY LTD RESPONDENT BETWEEN: ENERGIZER AUSTRALIA PTY LTD CROSS-CLAIMANT AND: GILLETTE AUSTRALIA PTY LTD CROSS-RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 15 SEPTEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applications for interlocutory injunctions be dismissed. 2. The costs of the applications be costs in the principal proceeding. 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 N 1201 of 2004 BETWEEN: GILLETTE AUSTRALIA PTY LTD APPLICANT AND: ENERGIZER AUSTRALIA PTY LTD RESPONDENT BETWEEN: ENERGIZER AUSTRALIA PTY LTD CROSS-CLAIMANT AND: GILLETTE AUSTRALIA PTY LTD CROSS-RESPONDENT JUDGE: WILCOX J DATE: 15 SEPTEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT WILCOX J: 1 The proceeding before the Court is a dispute between producers of razors. The applicant, Gillette Australia Pty Ltd ('Gillette'), markets a product known as the Mach3 Turbo razor. The respondent, Energizer Australia Pty Ltd ('Energizer'), markets the Schick Quattro razor. 2 Energizer put the Schick Quattro razor on to the Australian market in July 2004. It embarked on an advertising campaign. Gillette immediately complained about a claim in those advertisements that 'no other razor shaves closer than the Schick Quattro razor'. Energizer refused to withdraw the claim. Gillette filed an application for declaratory relief and damages in this Court and sought an interlocutory injunction. 3 Before the application for interlocutory relief could be heard, Energizer filed a defence and a cross-claim, in which it complained of Gillette's advertising; in particular, Gillette's claim that the Mach3 Turbo razor 'gives [or will give] the closest most comfortable shave'. Energizer sought an interlocutory injunction to restrain the making of that claim. Both applications for interlocutory relief were fixed for hearing today. Both parties filed a considerable body of evidence. 4 Energizer filed affidavits concerning five studies that considered the relative shaving closeness of the two razors, being studies that might be regarded as designed to make an objective comparison of the products. It is common ground that three of those studies indicated no statistically significant result. 5 A fourth study, called 'the first barber study', is agreed not to have produced a statistically significant result in relation to the use of the two razors. However, at least on one view, it showed the Schick Quattro razor is the more effective razor in the jaw and throat area. 6 The fifth study, conducted by the United Kingdom Cutlery and Allied Trades Research Association, which has been referred to as 'the CATRA study', involved weighing debris resulting from the shaving process. The debris included some skin, perhaps dead skin cells, perhaps live skin cells, taken from the shaver's face. The study seemed to show that the Schick Quattro razor is more efficient in removing material from the face. However, the methodology of this study has been criticised in affidavits filed by Gillette. There is also evidence criticising the first barber study. 7 Gillette filed affidavits describing an American study using a sample group of 400 men ('the consumer use test'). Participants were each asked to use one of the razors for a three week period, and then the other razor for the same period. Apparently, half the men used the Schick Quattro razor first and then changed over to the Mach3 Turbo razor; the other half did the opposite. At the end of the trial, they were asked numerous questions. The answers favoured Gillette. 8 There is a question as to whether either of the impugned claims should be regarded as a statement of fact, as distinct from mere puffery. However, counsel for both parties argued the applications for interlocutory relief on the basis that both claims should be regarded as statements of fact. I will proceed on the basis of counsel's approach, without committing myself to it for the purposes of any final hearing I might conduct. 9 On the basis that these are claims of fact, the next question is whether there is material that justifies either claim; to put the matter in terms of an application for interlocutory relief, whether there is a serious question to be tried that either claim constitutes misleading or deceptive conduct. 10 I do not find the evidence convincing either way in relation to relative closeness of shaving. I am not sure how one might satisfactorily determine, as a question of fact, whether one razor gives a closer shave than another. There may be a way, but I am not convinced it has yet been found. 11 I understand the criticism that has been made of the CATRA study. In particular, it seems odd that, in determining the relative efficiency of a razor in removing facial hairs, one takes into account any skin it removes. I also understand the criticism that has been made about the first barber study – basically, that the shaving was conducted by professional barbers under particular test conditions, rather than by users in their own homes as would be the case for a typical purchaser. 12 On the other hand, it seems to me there are serious difficulties about the consumer use test relied upon by Gillette. This test was criticised by an expert witness in an affidavit filed by Energizer. As the expert pointed out, the test did not purport to carry out an objective assessment of the amount of hair taken from the face; it only recorded the impression of users as to which razor gives the closer shave, amongst other things. 13 In the result, I find myself unconvinced that there is any material that establishes the factual correctness of the claim made by either side. I think it follows that I should conclude there is a serious question to be tried in relation to each party's statement. 14 Although the parties are divided on almost everything else in the case, they joined in urging that I not take the course which might be regarded as the logical corollary of this conclusion; to grant each of them interlocutory relief in relation to the statement of the other. It seems they would prefer a situation in which both parties are free to continue their current advertisements, fighting it out in the market place, rather than both parties be restricted in their advertising. Having regard to that preference, I will not make interlocutory orders against both parties. 15 I have considered whether there is a critical distinction between the position of the two parties. One obvious difference, which flows from the language used, is that Gillette makes a claim of superiority, using the word 'closest', whereas Energizer is content to make a comparative claim; that is, that no other product gives a closer shave. If there is difficulty in seeing justification for a comparative claim, that difficulty is compounded by a claim of superiority. 16 But for one factor, therefore, I would have been inclined to make an interlocutory order against Gillette. I have decided not to do so. My reason is that the Gillette advertisement does not make a separate claim about the Mach3 Turbo razor giving the closest shave. The statement is linked with a statement about the most comfortable shave. That is clearly a claim about a subjective matter. Any viewer of the advertisement, who heard the voice-over making this statement, would understand that it represents a subjective assessment. Given that 'closest' is so directly linked with 'most comfortable', I think viewers might form the same opinion about that claim. Consequently, although the correctness of my view is debatable, I have decided that, at least for interlocutory purposes, no distinction should be made between the parties' positions. 17 In consequence, I propose to refuse the application for interlocutory relief made by each party. The appropriate course is to dismiss both claims for interlocutory relief and to order that the costs of the applications be costs in the proceeding. I so order. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 6 October 2004 Counsel for the Applicant: Mr J V Nicholas SC, Mr C Dimitriades Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Mr S Finch SC, Mr M J Darke Solicitor for the Respondent: Gilbert + Tobin Date of Hearing: 15 September 2004 Date of Judgment: 15 September 2004