Comparative advertising saga keeps going and going and going

by eCommerce

Energizer Australia Pty Limited v Gillette Australia Pty Limited [2002] FCA 321

Energizer Australia Pty Limited (the makers of 'Eveready') and Gillette Australia Pty Limited (the makers of 'Duracell') have been for many years Australian subsidiaries of long established multinational manufacturers and distributors of batteries. There is a history of litigious disputes between the two corporate groups, in Australia and overseas, arising out of the advertising of claims and counter claims concerning the comparive performance capacities of their respective products.

Comparative advertising

Comparative advertising, as the name suggests, is the comparison of one product or service with a competitor's equivalent. Indulgence in comparative advertising has been traditionally recognised by the Federal Court of Austrlia as an undertaking fraught with risk. The Court's responses to Gillette's comparative advertising campaigns are no exception.

Keeps going and going and going...

In 1999, the Federal Court found Gillette guilty of misleading or deceptive conduct. Gillette's comparative television, billboard and product sticker 'pink bunny' campaign stated that their own brand of battery, Duracell, "lasts up to four times longer" than their competitor's. What Gillette failed to disclose adequately was that the alkaline Duracell battery would be compared to an inferior zinc carbon Eveready battery, and that the durability of the alkaline Duracell and the alkaline Eveready were similar. Different products would, of course, create different results.

In late 2001, a similar comparative advertising campaign was undertaken by Gillette, except this time Gillette advertised that their brand of battery would last "up to 3 times longer". However, Gillette once again failed to mention:
  • Energizer sells comparable batteries to the alkaline Duracell battery;

  • there is a substantial retail price differential between alkaline Duracell batteries and the Eveready zinc carbon battery against which the Duracell battery was tested; and

  • the Energizer zinc carbon battery is only the fifth most powerful battery in the Energizer range of batteries.
Despite attempts by Duracell to modify the 'pink bunny' commercials by making visual alterations and superscripts, the underlying assertion of a misleading comparison remained.

The result was that, on 22 March 2002, the Federal Court restrained Gillette from further distribution of point sale materials on the basis that they contained statements substantially to the effect that "Duracell lasts up to 3 times longer" than certain other batteries, without qualifying the circumstances in the statement applied.

Principles to be followed

The principles of comparative advertising are well established and have not changed in twenty years:

"When a person produces a television commercial that not only boosts his own product but, as in this case, compares it critically with the product of another so that the latter is shown up in an unfavourable light by the comparison...[the person] ought to take particular care to ensure that the statements are correct." (Stuart Alexander & Co v Blenders (1981) 37 ALR 161 at 163 per Lockhart J).

Anyone seeking to embark upon a comparative advertising campaign should be mindful of the following:
  • Do not, under any circumstances, omit any material necessary to make the comparison fair;

  • the Courts will be intolerant of half truths, or unqualified literal truths;

  • Comparisons made must be accurate, that is, they must be well-founded and scientifically proven (if need be);

  • The practice of 'puffing' of the product hold no place;

  • Qualifications made by voiceover or in fine print are to be used with extreme caution; and

  • The compared goods or service must be of the same class. Try to imagine an airline comparing its first class seat to a competitor's economy seat, whilst withholding the fare differential from its audience.


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