Reckitt Benckiser (Australia) Pty Limited v Procter and Gamble Australia Pty Limited

In the Federal Court of Australia, Reckitt Benckiser (Australia) Pty Limited sought an interim injunction against Procter and Gamble Australia Pty Limited to prevent the publication of a television commercial and the conduct of an in-store promotion, both of which featured comparative advertising. The primary issue before the Court was whether a prima facie case existed for the injunction, given that the granting of such an injunction would likely resolve the substantive proceeding. The Court had to assess the evidence provided, including the SGS report, which conducted a comparative study of the cleaning performance of Fairy Platinum and various Finish variants, and determine if the representations made in the advertising were misleading and could contravene the Australian Consumer Law.

The Court found that, although the parties had a long-standing dispute over the cleaning performance of their products, there was insufficient evidence to establish a prima facie case that the advertised claims were misleading. The Court considered the balance of convenience and noted that the potential damage to the Finish brand due to misleading advertising was significant, but the evidence provided by Procter and Gamble was not compelling enough to warrant an interim injunction. Additionally, Procter and Gamble's potential loss of sales could be adequately addressed through a damages award. Consequently, the Court dismissed the application for an interim injunction with costs.

The Court ordered that the interlocutory application filed on 23 February 2018 be dismissed and that the applicant pay the respondent's costs of the interlocutory application. Furthermore, the time for filing any application for leave to appeal was extended to 14 days after the publication of the revised reasons for judgment. Confidentiality orders were also made regarding certain exhibits and documents, which were not to be disclosed to any person or entity other than those specified in the order, subject to the signing of a confidentiality undertaking.