scientific evidence and found that there was a real dispute as to whether citraden inhibits plaque and whether the concentration in Aim would in fact inhibit plaque or reduce decay. Some evidence indicated that Aim was not better than other toothpastes in inhibiting or reducing plaque. The tests relied on by Rexona were largely unpublished and had not been independently assessed by the dental profession. Trade rival litigation can nevertheless backfire badly. NARHEX AUSTRALIA PTY LTD V SUNSPOT PRODUCTS LTD [18.470] Narhex Australia Pty Ltd v Sunspot Products Ltd  FCA 232 Business and the Law 828 Andrew, Terry, and Giugni Des. <i>Business & the Law</i>, Thomson Reuters (Professional) Australia Pty Limited, 2016. ProQuest Ebook Central, . Created from wsudt on 2019-09-25 20:12:06. Copyright © 2016. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.
This case concerned well-publicised litigation between competing distributors of anti-wrinkle creams containing an ingredient known as elastin. The conclusion of the case brought little satisfaction to either company. The applicant succeeded in establishing that the respondent’s advertising of its “John Plunkett’s super cross-linked elastin eye cream with 10% cross-linked elastin CLR SOL N plus collagen CLR and rose hip oil” was misleading. The 10% figure was based on the fact that the cream contained 10% of an elastin solution, which had, as one ingredient, cross-linked elastin. In fact it contained only about 0.05 % elastin. Although the abbreviation CLR SOL N and other label details rendered this claim literally true, potential consumers with no scientific knowledge would be misled into believing that the product contained 10 % elastin. The applicant’s victory was nevertheless hollow. The respondent’s cross-claim in respect of misleading or deceptive conduct on the part of the applicant was also successful. Foster J considered that: the general elegance of the design of the cross-respondent’s packaging, including the rich but tasteful colouring, coupled with the prominent use of the word Paris and the clearly displayed French language directions, combine to convey the impression of a definite connection with France … I am satisfied that, at the very least, it indicates that the product is currently available to consumers in France and in Paris in particular. To the less astute purchaser it could also convey overtones of acceptance of the product by discerning Parisian buyers. The packaging was misleading because the product was not made in France, imported from France or distributed in France. The misleading impression given by the packaging was not saved by a sticker indicating that the product was “Manufactured in Japan for Narhex Australia Pty Limited”.
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