Gillette Australia Pty Ltd v Energizer Australia Pty Limited [2005] FCA 1647

FEDERAL COURT OF AUSTRALIA

Gillette Australia Pty Ltd v Energizer Australia Pty Limited [2005] FCA 1647

TRADE PRACTICES – consumer protection – comparative advertising – whether television advertising about the superior performance of the advertiser's batteries is misleading or deceptive

Trade Practices Act 1974 (Cth) s 52

Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 - applied Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515 - cited Campomar Sociedad Limitada & Anor v Nike International Ltd & Anor (2000) 202 CLR 45 - applied General Newspapers Pty Limited & Ors v Telstra Corporation (1993) 45 FCR 164 - cited Pappas & Anor v Soulac Pty Ltd & Anor (1983) 50 ALR 231 - cited GILLETTE AUSTRALIA PTY LTD (ACN 000 011 914) AND THE GILLETTE COMPANY v ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) AND EVEREADY BATTERY COMPANY, INC VID 1352 OF 2005 MERKEL J 17 NOVEMBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1352 OF 2005

BETWEEN: GILLETTE AUSTRALIA PTY LTD (ACN 000 011 914)

FIRST APPLICANT

THE GILLETTE COMPANY

SECOND APPLICANT

AND: ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026)

FIRST RESPONDENT

EVEREADY BATTERY COMPANY, INC

SECOND RESPONDENT

JUDGE: MERKEL J

DATE OF ORDER: 17 NOVEMBER 2005

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. In causing the television advertisement, a copy of which is exhibit GSO-4 to the affidavit of George Staley O'Neil sworn 28 October 2005 ('the Advertisement') to be broadcast, the first respondent, Energizer Australia Pty Ltd ('Energizer Australia'), has engaged in conduct in trade or commerce, which was misleading and deceptive or likely to mislead and deceive, in contravention of s 52 of the Trade Practice Act 1974 (Cth). AND THE COURT ORDERS THAT: 2. Energizer Australia, whether by itself or by its servants, agents or howsoever otherwise, be restrained from causing the Advertisement to be broadcast for so long as the Advertisement contains a representation to the effect that Energizer's lithium batteries are the world's longest lasting batteries. 3. Each party bear its own costs of the proceedings unless the parties file submissions within seven days seeking a different order as to costs. 4. Reserve liberty to apply.