The Federal Court recently handed down its decision in a dispute between Unilever (owner of Rexona and Dove) and Beiersdorf (owner of Nivea) regarding 'clinical strength' antiperspirant deodorants. The Court found that the use of 'clinical strength' marketing in relation to Nivea deodorants was not false, misleading or deceptive as Unilever had claimed. Associate Anna Conigrave and Summer Clerk Lydia Watson-Moore report.
In 2009, Unilever Australia began selling a 'Clinical Protection' range of Rexona and Dove antiperspirant deodorants, marketed to people who sweat heavily. In 2013, Revlon Australia introduced a 'Mitchum Clinical' range, and, in 2014, Beiersdorf Australia introduced a 'Nivea Stress Protect Clinical Strength' range. The 'clinical' products sold by the three companies had a number of features in common, including that they were sold in a box with an instruction leaflet, were sold at a higher price than most other antiperspirant deodorants on the market and were marketed to people who sweat heavily.
Unilever alleged that Beiersdorf's marketing, distribution and sale of the Nivea 'Stress Protect Clinical Strength' range amounted to misleading or deceptive conduct, or false or misleading representations, contrary to sections 18 and 29(1) of the Australian Consumer Law (ACL).
Unilever claimed that Beiersdorf made 11 false or misleading representations, which Justice Wigney grouped into the following categories:
- The 'Similarity Representations': that the Nivea products had, or would have, similar antiperspirant efficacy, or similar efficacy, in preventing stress sweat, to the Rexona and Dove Clinical Protection products and the Mitchum Clinical products.
- The 'Superiority Representations': that the Nivea products had, or would have, superior antiperspirant efficacy, or superior efficacy, in preventing stress sweat, than all ordinarily available 'non-clinical' antiperspirant deodorants.
- The 'Stress Sweat Representations': that the Nivea products were highly efficacious, or would provide particularly strong protection in relation to stress sweat.
Beiersdorf denied making the Similarity and Superiority Representations, and admitted making the Stress Sweat Representations, which it argued were substantiated.
The Similarity and Superiority Representations
Beiersdorf did not expressly make the Similarity or Superiority Representations. Accordingly, the issue was whether the representations could be implied from Beiersdorf's conduct.
Justice Wigney found that the ordinary reasonable consumer of antiperspirant deodorants would perceive that there was a 'clinical' subcategory of the Australian antiperspirant deodorant market, which included Unilever's Rexona and Dove 'Clinical Protection' range, Revlon's 'Mitchum Clinical' range, and the Nivea Stress Protect Clinical Strength range. The key question for his Honour was what membership of the 'clinical' subcategory meant to the consumer.
Justice Wigney found that the meaning of the word 'clinical' as a marketing or descriptive term for antiperspirant deodorants was unclear, and that the evidence did not suggest the word had acquired a secondary meaning which included a set benchmark of antiperspirant efficacy. He considered that the ordinary reasonable consumer would understand that 'clinical' in this context meant the product was a high-strength or high-efficacy product that provided strong protection against sweat and associated odour.
Accordingly, he concluded that Beiersdorf had not made the Similarity or Superiority Representations.
The Stress Sweat Representations
Justice Wigney found that Unilever had failed to prove the Stress Sweat Representations were false, misleading or deceptive, or likely to mislead or deceive. The results of tests carried out by Beiersdorf suggested the Nivea Stress Protect Clinical Strength products were highly efficacious, including against stress sweat.
A number of consumer products are marketed using the description 'clinical' or 'clinical strength'. Why not? It is a common English word used often and in many contexts. This case reaffirms that whether or not any particular use of the word in context is false or misleading will turn on whether the description has acquired a secondary meaning in the relevant market.