Unilever Australia Ltd v Revlon Australia Pty Ltd (no.2)  FCA 875
This case is the latest skirmish between two personal product giants, Unilever and Revlon, before war breaks out on 15 September 2014 when the trial begins.
The case concerns ‘clinical’ anti-perspirant deodorant products; Revlon’s product sold under the brand name Mitchum Clinical and Unilever’s products sold under the brand names ‘Rexona’ and ‘Dove’.
The first interlocutory injunction hearing was brought by Unilever against Revlon in May 2014 concerned misleading representations alleged to have been made by Revlon in advertising. On balance, the Court refused to grant the injunction as it would have a serious adverse impact on the worldwide marketing campaign for Revlon and the trial could be held in July 2014. The July trial was eventually adjourned to 15 September 2014.
This second interlocutory hearing concerned the new product ‘get-up’, or packaging, for Unilever’s Rexona product. Revlon claimed that the Rexona ‘get-up’ constituted passing off and misleading and deceptive conduct in contravention of the Australian Consumer Law as consumers may be misled into believing that the Rexona products were, or associated with, Mitchum Clinical due to the Rexona ‘get-up’.
This case highlights the importance of reputational evidence even at an interlocutory stage. Reputation in a trader’s ‘get-up’ or trade dress is an essential element in both passing off and this type of misleading and deceptive conduct action. Revlon only relied on evidence from its Marketing Director to establish its reputation in Mitchum Clinical ‘get-up’ which the Court found was weak. The Court noted that reputation can be proved by evidence from brand specialists as well as evidence about the reactions of random shoppers to the brands. Further the Court found that the prominent use of brand names on each product and the colour green on Mitchum Clinical reduced the likelihood of confusion by consumers.
The Court refused to grant an injunction as the final hearing will commence in September and if granted, there was a real risk of disruption to the market by the temporary unavailability of the Rexona product for women.