Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Unilever Australia Ltd v PZ Cussons Australia Pty Ltd [2008] FCA 809 PRACTICE AND PROCEDURE – interlocutory injunction – misleading and deceptive conduct – prima facie case – balance of convenience. Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 cited UNILEVER AUSTRALIA LTD (ACN 004 050 828) v PZ CUSSONS AUSTRALIA PTY LTD (ACN 004 164 827)
NSD 638 of 2008
TAMBERLIN J
30 MAY 2008
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 638 of 2008
BETWEEN: UNILEVER AUSTRALIA LTD (ACN 004 050 828)
Applicant/Cross-Respondent
AND: PZ CUSSONS AUSTRALIA PTY LTD (ACN 004 164 827)
Respondent/Cross-Claimant
JUDGE: TAMBERLIN J DATE OF ORDER: 30 MAY 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The applicant's application for interlocutory relief be dismissed. 2. The respondent's cross-claim for interlocutory relief be dismissed. 3. The costs of the application and cross-claim for interlocutory relief be costs in the cause.
THE COURT DIRECTS THAT:
4. The parties consult and send to the Associate of Justice Tamberlin Short Minutes of Order to enable the matter to be heard and determined at the earliest possible date. 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 NSD 638 of 2008
BETWEEN: UNILEVER AUSTRALIA LTD (ACN 004 050 828)
Applicant/Cross-Respondent
AND: PZ CUSSONS AUSTRALIA PTY LTD (ACN 004 164 827)
Respondent/Cross-Claimant
JUDGE: TAMBERLIN J
DATE: 30 MAY 2008
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The applicant ("Unilever") seeks an interlocutory injunction against the respondent ("Cussons") on the basis that Cussons has engaged in misleading and deceptive conduct by placing statements on one of its products, known as "Radiant micro Max". The product is a liquid cleaning product used as a cleaning agent when washing clothes. The substance of Unilever's comparative advertising claim is that the script on the Radiant micro Max bottle which states that it is "Proven to Outperform Omo Small & Mighty" ("the Radiant Statement") is misleading. "Omo Small & Mighty", which is produced by Unilever, is a product which performs a similar role to Radiant micro Max. Unilever also claims that Cussons engaged in misleading conduct as to the relative prices and values of the two products. In response, Cussons filed a cross-claim alleging that Unilever has engaged in misleading conduct in respect of certain statements and images used on its Omo Small & Mighty bottle and other products.
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