Invisalign Australia Pty Limited v SmileDirectClub LLC [2023] FCA 395

FEDERAL COURT OF AUSTRALIA

Invisalign Australia Pty Limited v SmileDirectClub LLC [2023] FCA 395 File number: NSD 1356 of 2021

Judgment of: ANDERSON J

Date of judgment: 5 May 2023

Catchwords: CONSUMER LAW – misleading and deceptive conduct – where the applicant, Invisalign, supplies clear dental aligners to consumers in the market for teeth straightening treatments (Invisalign Aligner Treatment) – where the respondents (SDC) have engaged in promotional advertising in respect of its clear aligner teeth straightening products (SDC Aligner Treatment) – where the applicant alleges that representations that were made by SDC in promotion of its SDC Aligner Treatment is false, misleading or deceptive, or likely to mislead or deceive consumers pursuant to ss 18 and 29 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (ACL) – where the applicant alleges false or misleading representations were made by SDC in relation to the cost, efficacy and results achieved by SDC Aligner Treatment – comparative advertising – assessment of representations made by SDC against the principles in Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2002] FCAFC 223; 193 ALR 629 – whether the alleged representations were conveyed – whether the alleged representations were false, misleading or deceptive, or likely to mislead or deceive – where none of the applicant's claims are made out – application dismissed with costs CONSUMER LAW – cross-claim – where the cross-claimant, SDC, alleges that cross-respondent made various representations about SDC Aligner Treatment in an advertorial which was published by a media outlet (DIY article) which it alleges were false, misleading or deceptive, or likely to mislead or deceive – where the cross-claimant alleges that the DIY article as well as other promotional material published by Invisalign made false representations with respect to the comfort, predictability of treatment and the treatment time associated with Invisalign Aligner Treatment – application also dismissed with costs