Reckitt Benckiser Throws Cold Water On Procter & Gamble's New "30 Minute Miracle" Dishwashing Tablet

• Author: Ms Sue Gilchrist, Anna Vandervliet and Calida Tang
• Law Firm: Herbert Smith Freehills
• Published date: 22 May 2023

The case is a timely reminder of the power of urgent interim injunctions

The dishwashing wars continue. This product category has been the subject of a number of disputes between competitors in recent times (see previous blog posts here and here). In the latest instalment, RB (Hygiene Home) Australia Pty Ltd, part of the Reckitt Benckiser group of companies and the manufacturer of FINISH dishwashing products (RB), has come out on top. Reckitt Benckiser secured an urgent interim injunction (also referred to as a preliminary injunction) against Procter & Gamble's (P&G's) FAIRY "30 Minute Miracle" dishwashing tablet product (Miracle).

The recent Federal Court decision highlights the importance of ensuring claims to superior performance are accurate and the potential risks associated with relying on disclaimers. The case serves as a timely reminder that an urgent interim injunction can be a powerful remedy against a competitor. The practical consequence of the interim injunction granted by the Court in this case will require Procter & Gamble to pull the Miracle product from supermarket shelves only a short time after launch.

KEY TAKEAWAYS

• Urgent interim injunctions are a powerful tool in the consumer goods space which may have far-reaching commercial consequences, in effect as substantial as final relief.
• It is important to move quickly when seeking an urgent interim injunction. In this case, the Miracle product was launched around 20 March 2023, the application for an urgent injunction was filed on 3 April 2023, and the hearing was held on 23 April 2023.
• Businesses should carefully consider the design and presentation of marketing claims on product packaging and how they would be perceived and understood by ordinary consumers. While disclaimers can be effective in some circumstances, they must be sufficiently prominent and legible, and cannot correct or contradict the headline representation having regard to the overall impression of the packaging.
• Claims to superior performance can be an effective marketing strategy. However, businesses should ensure that any performance claims are accurate, having regard to how an ordinary, reasonable consumer would understand the claim, and that the claim is able to be properly substantiated.
• The private interests of parties are not the sole consideration in balance of convenience where claims are based on the Australian Consumer Law. Courts will have strong regard to the public interest in protecting consumers from...