Unilever Plc v Beiersdorf AG

This matter concerned a dispute between Unilever Plc (the Opponent) and Beiersdorf AG (the Applicant) before the Australian Competition Tribunal. The Opponent, through its Australian affiliate, argued that the use of the words "BLACK AND WHITE" and the anti-stain category of the relevant market had been discussed in numerous decisions in other jurisdictions. Evidence was presented regarding the Australian market for antiperspirant deodorants, where Unilever was identified as the leading player.

The legal issues before the Tribunal included whether the use of the words "BLACK AND WHITE" and the anti-stain category constituted a relevant market for the purposes of competition law. The Tribunal was also required to consider the extent to which developments in the global market for such products quickly made their way into the Australian market and influenced consumer concerns and marketing efforts.

The Tribunal considered evidence from Unilever Australia's Marketing Director, who detailed the company's extensive use of "BLACK AND WHITE" wording and imagery in the marketing of its anti-marking antiperspirant deodorant products since at least 2010. This included artwork for REXONA brand products and a significant advertising campaign launched in October 2014. The campaign specifically promoted the anti-white mark and anti-yellow stain benefits using "BLACK AND WHITE" wording and imagery across various media, including television, radio, social media, and point-of-sale materials. The Tribunal noted that the advertising consistently emphasized the product's ability to help "white stay white" and "black stay black."