FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v DuluxGroup (Australia) Pty Limited [2014] FCA 1158
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IN THE FEDERAL COURT OF AUSTRALIA |
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AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant | |
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AND: |
DULUXGROUP (AUSTRALIA) PTY LIMITED (ACN 000 049 427) Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
InfraCool colour card
1. Does the InfraCool colour card convey the 10 degrees cooler representation?
Answer: No.
2. Does the InfraCool colour card convey the InfraCool energy saving representation?
Answer: No.
3. Does the InfraCool colour card convey the lower carbon footprint representation?
Answer: No.
InfraCool fact sheet
4. Does the InfraCool fact sheet convey the 10 degrees cooler representation?
Answer: No.
5. Does the InfraCool fact sheet convey the InfraCool energy saving representation?
Answer: No.
Heat reflect promotional material
6. Does the heat reflect promotional material convey the exterior temperature reduction representation?
Answer: Yes.
7. Does the heat reflect promotional material convey the interior temperature reduction representation?
Answer: Yes.
Dulux web pages
Paragraph 34(b) of the amended statement of claim
8. Does the Dulux web page pleaded at paragraph 34(b) of the amended statement of claim convey the exterior temperature reduction representation?
Answer: Yes.
9. Does the Dulux web page pleaded at paragraph 34(b) of the amended statement of claim convey the interior temperature reduction representation?
Answer: Yes.
10. Does the Dulux web page pleaded at paragraph 34(b) of the amended statement of claim convey the heat reflect energy saving representation?
Answer: No.
Paragraph 34(d) of the amended statement of claim
11. Does the Dulux web page pleaded at paragraph 34(d) of the amended statement of claim convey the exterior temperature reduction representation?
Answer: Yes.
12. Does the Dulux web page pleaded at paragraph 34(d) of the amended statement of claim convey the interior temperature reduction representation?
Answer: Yes.
13. DELETED
14. Does the Dulux web page pleaded at paragraph 34(d) of the amended statement of claim convey the heat reflect energy saving representation?
Answer: No.
Heat reflect colour card
15. Does the heat reflect colour card convey the exterior temperature reduction representation?
Answer: Yes.
16. Does the heat reflect colour card convey the interior temperature reduction representation?
Answer: Yes.
17. Does the heat reflect colour card convey the heat reflect energy saving representation?
Answer: No.
Heat reflect tins
18. Do the labels of the heat reflect tins convey the exterior temperature reduction representation?
Answer: Yes.
19. Do the labels of the heat reflect tins convey the interior temperature reduction representation?
Answer: No.
20. Do the labels of the heat reflect tins convey the admitted interior temperature reduction representation?
Answer: Yes.
Facebook page
21. Does the Facebook page convey the exterior temperature reduction representation?
Answer: Yes
22. Does the Facebook page convey the interior temperature reduction representation?
Answer: Yes
23. Does the Facebook page convey the heat reflect energy saving representation?
Answer: No
Heat reflect print media advertisements
Better Homes & Gardens magazine
24. Does the heat reflect print media advertisement that appeared in the Better Homes & Gardens magazine on 7 December 2011 convey the exterior temperature reduction representation?
Answer: Yes.
25. Does the heat reflect print media advertisement that appeared in the Better Homes & Gardens magazine on 7 December 2011 convey the interior temperature reduction representation?
Answer: No.
26. DELETED
27. Does the heat reflect print media advertisement that appeared in the Better Homes & Gardens magazine in March 2012 convey the exterior temperature reduction representation?
Answer: Yes.
28. Does the heat reflect print media advertisement that appeared in the Better Homes & Gardens magazine in March 2012 convey the interior temperature reduction representation?
Answer: Yes.
29. DELETED
Handyman magazine
30. Does the heat reflect print media advertisement that appeared in the Handyman magazine convey the interior temperature reduction representation?
Answer: No.
31. DELETED
Australian House & Garden
32. Does the heat reflect print media advertisement that appeared in Australian House & Garden convey the interior temperature reduction representation?
Answer: Yes.
33. DELETED
Building Products News magazine
34. Does the heat reflect print media advertisement that appeared in the Building Products News magazine convey the exterior temperature reduction representation?
Answer: Yes.
West Australian – Habitat supplement
35. Does the heat reflect print media advertisement that appeared in the West Australian – Habitat supplement convey the exterior temperature reduction representation?
Answer: No.
36. Does the heat reflect print media advertisement that appeared in the West Australian – Habitat supplement convey the interior temperature reduction representation?
Answer: No.
37. DELETED
Queensland Times, Warrnambool Standard, Gladstone Observer and Port Stephens Examiner
38. Considered separately, do each of the heat reflect print media advertisements that appeared in the Queensland Times, Warrnambool Standard, the Gladstone Observer and the Port Stephens Examiner convey the exterior temperature reduction representation?
Answer: Yes.
39. Considered separately, do each of the heat reflect print media advertisements that appeared in the Queensland Times, Warrnambool Standard, the Gladstone Observer and the Port Stephens Examiner convey the interior temperature reduction representation?
Answer: Yes.
40. DELETED
41. DELETED
Weekend Gold Coast Bulletin
42. Does the heat reflect print media advertisement that appeared in the Weekend Gold Coast Bulletin convey the exterior temperature reduction representation?
Answer: Yes.
43. Does the heat reflect print media advertisement that appeared in the Weekend Gold Coast Bulletin convey the interior temperature reduction representation?
Answer: No.
Heat reflect press releases
“Sunscreen for your family, sunscreen for your home”
44. Does the heat reflect press release entitled “Sunscreen for your family, sunscreen for your home” convey the exterior temperature reduction representation?
Answer: Yes.
45. Does the heat reflect press release entitled “Sunscreen for your family, sunscreen for your home” convey the interior temperature reduction representation?
Answer: No.
46. Does the heat reflect press release entitled “Sunscreen for your family, sunscreen for your home” convey the heat reflect energy saving representation?
Answer: No.
“Embrace a darker shade and keep cool this Summer”
47. Does the heat reflect press release entitled “Embrace a darker shade and keep cool this Summer” convey the exterior temperature reduction representation?
Answer: Yes.
48. Does the heat reflect press release entitled “Embrace a darker shade and keep cool this Summer” convey the interior temperature reduction representation?
Answer: Yes.
49. DELETED
50. DELETED
51. DELETED
52. DELETED
Heat reflect television commercials
53. Do the heat reflect television commercials convey the exterior temperature reduction representation?
Answer: Yes.
54. Do the heat reflect television commercials convey the interior temperature reduction representation?
Answer: No.
Heat reflect Better Homes & Gardens segment
55. Does the heat reflect Better Homes & Gardens segment convey the exterior temperature reduction representation?
Answer: Yes.
Heat reflect video
56. Does the heat reflect video convey the exterior temperature reduction representation?
Answer: Yes.
57. Does the heat reflect video convey the interior temperature reduction representation?
Answer: Yes.
58. Does the heat reflect video convey the heat reflect energy saving representation?
Answer: No.
Heat reflect Conergy promotion video
59. Does the heat reflect Conergy promotion video convey the heat reflect energy saving representation?
Answer: No.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
WAD 351 of 2012 |
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant |
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AND: |
DULUXGROUP (AUSTRALIA) PTY LIMITED (ACN 000 049 427) Respondent |
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JUDGE: |
SIOPIS J |
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DATE: |
30 october 2014 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
1 During the period August 2008 to September 2012, the respondent, DuluxGroup (Australia) Pty Limited (Dulux), engaged in advertising and marketing activities in respect of two of its products, namely, Dulux AcraTex InfraCool roof paint and Dulux Weathershield Heat Reflect wall paint. These activities included the publication of advertising and marketing documents and the promotion of the products on television and through social media.
2 In this proceeding, the applicant, Australian Competition and Consumer Commission contended that Dulux in the course of its advertising and marketing activities in respect of each of those two products, made statements and published materials which misrepresented the qualities of the paint and the effect of applying the paint to the roof and walls of a house respectively. In so doing, alleged the applicant, Dulux contravened, depending upon the date of the impugned conduct, s 52 and s 53(c) of the Trade Practices Act 1974 (Cth) or s 18 and s 29(1)(g) of the Australian Consumer Law (Cth), being Sch 2 of the Competition and Consumer Act 2010 (Cth).
3 The applicant has advanced a primary and an alternative case as to the content of the representations said to arise from the language and get-up of the advertising and marketing materials published and distributed by Dulux. Dulux disputes that the language and get-up of the advertising and marketing materials give rise to the representations which the applicant pleads as its primary case against Dulux. However, Dulux, in general, admits the applicant’s alternative case. Dulux defends the applicant’s alternative case on the basis that its conduct in making those representations was not misleading or deceptive. Dulux does not seek to make such a case in respect of the primary case advanced by the applicant. Dulux’s defence in relation to the applicant’s primary case is confined to disputing that the language and get-up of the advertising and marketing materials gave rise to the representations alleged by the applicant.
4 I ordered that the question whether the language and/or get-up of the advertising and marketing materials gave rise to the representations relied upon by the applicant for its primary case, be tried as a preliminary issue. This led to the parties formulating the questions in respect of which they sought answers from the Court.
5 I will, in due course, deal with each of the representations the subject of the preliminary issue. However, I will start by making some general observations about the relevant principles to be applied, in assessing the meaning conveyed by each of the representations in this case.
6 In order to assess whether conduct is misleading or deceptive in contravention of the Australian Consumer Law, it is necessary to identify the class of consumers to which the representation is addressed, and then to identify whether an ordinary or reasonable member of that class of consumers would be, or would be likely to be, misled or deceived.
7 Further, in assessing the meaning conveyed by the content of a representation conveyed in an advertisement, regard should be had to the overall effect of the advertisement. Accordingly, if an advertisement contained headline words and images likely to have a powerful effect on the mind of an ordinary or reasonable consumer which needed to be qualified, the qualifying material would have to be sufficiently prominent to overcome the initial effect of the main claim or image (Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [37]-[38].
8 In this case, the impugned advertisements and marketing materials took a number of different forms. In relation to the representations made about the roof paint, the representations were made in two different documents, namely, a colour chart and a fact sheet. However, in relation to the wall paint, the representations were made in documents, television advertisements, on web pages, and through social media.
9 The fact that the representations were made through different media will be a relevant factor in determining whether the impugned conduct was misleading or deceptive. Thus, for example, a television advertisement is transitory and the consumer is not given the same opportunity to consider the detail of what is being represented, as the consumer would when reading a print advertisement. So for that reason, a disclaimer flashed on the screen during the broadcasting of an advertisement on television, may be less effective in qualifying a prominent headline statement than one printed on a document (Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134 at [85]).
the representations in relation to the infracool roof paint
10 The applicant contended that Dulux made the impugned representations about the InfraCool roof paint in two different publications, namely, the InfraCool colour card and the InfraCool fact sheet.
InfraCool colour card
11 The InfraCool colour card is a four page folded document which contains printing on each page of the document. The front page contains a photograph and is not controversial. When the document is opened and folded out there is on the page on the left, a headline statement which reads:
A range of InfraCool colours from Dulux that keep your home cooler.
12 The following four statements (referred to in argument as “declaratory statements“) are prominently set out beneath that headline statement:
Reflects Solar radiation,
Lessens Heat penetration,
Reduces Cooling costs,
Lowers Carbon Footprint.
13 Immediately adjacent to those four statements on the right-hand page of the open colour card is a prominent image and associated text (which is reproduced in para 9 the statement of claim below) which depicts a comparison in the interior temperature of a house whose roof is painted with Dulux roof paint, and a house whose roof is painted with conventional roof paint. Beneath the statements and the image on adjoining pages of the colour card are 25 rectangular small blocks of colour representing each of the colours in which the roof paint is available. On the back page, a number of statements are made about the paint under the rubric of “Frequently Asked Questions” (FAQs).
14 I set out below the applicant’s pleaded allegation in respect of the representations said to arise from the language and get-up of the colour card.
InfraCOOL Colour Card
7 From about August 2008 until at least September 2012, Dulux published and distributed throughout Australia a colour card…(InfraCOOL Colour Card).
8 The InfraCOOL Colour Card was:
(a) provided or made available to consumers for the purpose of promoting the sale of InfraCOOL Paint; and
(b) provided or made available to consumers in hardware and paint stores where InfraCOOL Paint was sold.
9 The InfraCOOL Colour Card included:
(a) the following image (First Thermometer Image):
(b) the words “Living zones remain COOLER for longer, reducing cooling energy demand and cost” (emphasis as per the original);
(c) the words “For a typical Dark Grey-Black Roof a surface temperature different of 10-20°C can be demonstrated which translates into less heat flow into roof & living spaces”;
(d) the words “Due to their large surface area and angle of exposure, ROOF SURFACES capture enormous amounts of the Suns energy and thus COOL ROOFS offer significant gains in the energy efficiency of a structure” (emphasis as per the original);
(e) the words “Living zones remain COOLER for longer, reducing cooling energy demand and cost” (emphasis as per the original);
(f) the words “Reduces Cooling Costs”; and
(g) the words “Lowers Carbon Footprint” adjacent to the words ”Less use of air-conditioning reduces power consumption and associated greenhouse gases to generate it. That’s good for the environment and good for you”.
10 In the context of the InfraCOOL Colour Card as a whole, the words and images referred to in paragraphs 9(a), 9(b) and 9(c) above conveyed a representation to the effect that applying InfraCOOL Paint to the roof of a house can and will reduce the interior temperature of the living zones of that house by 10 degrees Celsius (10 Degrees Cooler Representation).
11 …
12 In the context of the InfraCOOL Colour Card as a whole (including the words and images paragraphs 9(a), 9(b) and 9(c) above), the words quoted at paragraphs 9(d), 9(e) and 9(f) conveyed a representation to the effect that applying InfraCOOL Paint to the roof of a house can and will significantly reduce the cooling energy consumption costs associated with the house, by reducing the interior temperature (InfraCOOL Energy Saving Representation).
13 …
14 In the context of the InfraCOOL Colour Card as a whole (including the words and images in paragraphs 9(a), 9(b), 9(c), 9(d), 9(e) and 9(f), the words at paragraph 9(g) conveyed a representation to the effect that applying InfraCOOL Paint to the roof of a house can and will significantly reduce the carbon footprint, or environmental effect, associated with that house, by reducing energy consumption (Lower Carbon Footprint Representation).
15. …
15 There is no dispute that the colour card contained the words and images pleaded by the applicant. However, as already mentioned, Dulux denied that the contents of the colour card gave rise to the three representations pleaded by the applicant, as set out above. Dulux advanced its own version of the representations which arise from the words and images of the colour card. Those representations are referred to by the parties as “the admitted representations”. I set out below a summary of the difference between the parties as to the content of the three representations in issue. The words in italics indicate the points of difference between the applicant’s and respondent’s contentions.
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Representation |
Applicant |
Respondent |
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10 degrees cooler |
Applying InfraCOOL paint to the roof of a house can and will reduce the interior temperature of the living zones of that house by 10°C |
Applying InfraCOOL paint to the roof of a house can reduce the interior temperature of the living zones of that house by up to 10°C |
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Energy saving |
Applying InfraCOOL Paint to the roof of a house can and will significantly reduce the cooling energy consumption costs associated with that house, by reducing the interior temperature. |
Applying InfraCOOL Paint to the roof of a house can and will reduce the energy consumption costs with respect to cooling associated with that house, by reducing the interior temperature, which reduction may be significant. |
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Lower carbon footprint |
Applying InfraCOOL paint to the roof of a house can and will significantly reduce the carbon footprint, or environmental effect, associated with that house, by reducing energy consumption. |
Applying InfraCOOL paint to the roof of a house can and will reduce the carbon footprint, or environmental effect, associated with that house, by reducing energy consumption with respect to cooling, which reduction may be significant. |
16 I deal first with the question of whether the applicant has established its primary case in relation to the content of what it referred to as the “10 degrees cooler representation”.
17 As mentioned, the applicant contended that the InfraCool colour card conveyed the representation, not merely that the paint had the capability to reduce the interior temperature of the house by 10°C, but that the application of the Dulux paint to the roof of a house “can and will reduce the interior temperature of the living zones of that house by 10 degrees Celsius”.
18 As is apparent from the image reproduced at para 9 of the statement of claim, which compares the difference in the impact of painting a roof with Dulux roof paint rather than conventional roof paint, there is within each of the two rooms, a thermometer reflecting the interior temperature of each room. This image is referred to in the applicant’s pleading as the “first thermometer image”.
19 At the forefront of the applicant’s contention is that the first thermometer image would have a powerful impact on the mind of an ordinary or reasonable consumer in causing that consumer to understand Dulux to be representing that the application of the Dulux roof paint to a house would reduce the interior temperature of the living zones of the house by 10°C. The applicant relied particularly upon a comparison of the significant difference of the temperature recorded on each of the two thermometers.
20 The reading on the thermometer in the room of the house whose roof was painted with Dulux paint, is 25°C, whereas the thermometer reading in the other room is 35°C. The applicant relied upon the difference between these two temperature readings to contend that the representation conveyed was that the application of the Dulux paint to the roof of a house could and would reduce the interior temperature of the living zones of the house by 10°C.
21 The applicant also referred to the text in the image recording the surface temperature of the roof painted with Dulux InfraCool paint as 70°C whilst the surface temperature of a roof not painted with that paint is recorded as 90°C+. The applicant also drew attention to the use of a suggestive colour scheme, namely, blue is used to depict the inside of the house painted with Dulux InfraCool paint as being cool, whereas orange/red depicts the inside of the other house as being hot.
22 The applicant contended that the juxtaposition and combination of the headline statement, the declaratory statements and the dramatic first thermometer image would have had a powerful influence on the mind of the consumer. The applicant contended that the reference to the consumer’s own home, by the use of the words “your home” in the headline statement, would induce a belief in the mind of the consumer that the represented benefits of applying the Dulux roof paint would accrue to the consumer when applied to the roof of the consumer’s home. Thus, contended the applicant, the advertisement did not merely suggest that these benefits were possible but declared them to be “innate attributes of the product”.
23 The applicant acknowledged that there was fine print beneath the image of the house in the “first thermometer image” to the effect that:
Actual temperatures may vary due to wind conditions, site location and construction variables. Data represents estimates based on ASTM E 1980 methodology and principles as published by US EPA.
24 However, said the applicant, this fine print was unlikely to be read by most consumers. Further, the applicant contended that the fine print was ambiguous and, when referring to temperatures, may be construed as referring to the actual temperatures depicted in the first thermometer image and not the differential between the two temperatures which reflected the cooling of the interior zones of the house.
25 The applicant also acknowledged the presence of the words “up to” in the words: “InfraCool increases Total Solar Reflection, keeping surfaces up to 20°C cooler” which appear on the right-hand side of the house in the image. The applicant contended that the presence of these words was not sufficient to overcome the overall impression created by the 10°C differential in the temperature readings. Further, the applicant pointed out that this was the only place in relation to the image with the words “up to” were used.
26 The applicant also accepted that among the FAQs on the back page of the folded colour card the following question and answer appeared:
Q. How Much Cooler Is Dulux Cool Roof?
A. It varies dependent upon the colour choice, building structure and air movement. For a typical Dark Grey – Black roof, a surface temperature difference of 10–20°C can be demonstrated which translates into less heat flow into roof and living spaces.
27 However, the applicant contended that it was reasonable to infer that because of the density and small font of the print under the rubric “FAQs” and the placement of this information on the back page of the folded colour card, a substantial proportion of consumers would not read all of this text.
28 The applicant’s contentions are not accepted.
29 In my view, for the following reasons, the statements and the first thermometer image in the colour card, relied upon by the applicant, when considered in their full context, do not give rise to the 10 degrees cooler representation.
30 First, the representations contained in the colour card are, in my view, addressed to consumers who would be contemplating a reasonably large expenditure on paint. This is because of the substantial volume of paint required to paint a roof. It was an agreed fact that the average number of litres of InfraCool paint needed to paint a roof was a total of 80 litres and that the average cost of that volume of paint was $1,098; and that the professional costs of applying the paint to the roof of a medium sized house would be around $2,870.
31 Because of the relatively large expenditure to a consumer in having a roof painted, the impact of the choice of paint on the appearance of the house, and the infrequency of the transaction, an ordinary or reasonable member of the class of consumers to whom the representations would be addressed, would, in my view, carry out research before purchasing the paint and, therefore, would read the colour card with some care. I do not accept the applicant’s contention that an ordinary or reasonable member of the class of consumers would read the colour card in a cursory manner so as to gain an impressionistic understanding of the representations made in the colour card.
32 An ordinary or reasonable consumer would, in my view, on reading the colour card appreciate that there was no representation that the application of any colour of the InfraCool roof paint would reduce the temperature of the living zones of a house by 10°C. This is because the colour card contains statements which make it clear that the extent of the advantage of using InfraCool roof paint over conventional roof paint, depends upon the colour of the paint used. In my view, an ordinary or reasonable consumer reading the colour card would understand that the underlying representation made by the colour card when read in its full context, is that by using the darker colours among the range of available InfraCool roof paints, rather than a conventional roof paint of that colour, the represented 10°C improvement in the interior temperature in the living zones of a house would be achieved. This is particularly apparent from an examination of the figures printed under each of the colour squares displayed in the colour card which record the heat reflective advantage between InfraCool roof paint and the conventional competitor. Thus, for example, there is only a 14% improvement in heat reflective capability when using Colorbond Classic Cream over a conventional white paint, but there is a 319% increase when using the dark colour, Ebonite, over its conventional competitor. This information forms part of the overall context in which the representation conveyed by the statements and the first thermometer image is to be considered. It is also significant in that regard that the image specifically depicts the comparative position between using Dulux “InfraCool Black system” paint over conventional black paint. The temperature readings displayed in the image, therefore, specifically reflect the temperature differential between using the Dulux “InfraCool Black system” paint rather than conventional black paint to paint a roof.
33 Further, in my view, an ordinary or reasonable consumer would also read the FAQs text. This text would reinforce the impression conveyed to an ordinary or reasonable consumer that the extent of the reduction in the temperature of the roof depended upon a number of factors, one of which was the colour of the Dulux paint chosen.
34 It follows that, in my view, an ordinary or reasonable member of the class of consumers to whom the colour card is addressed, would not understand the statement and words in the colour card to convey the representation that applying Dulux InfraCool paint to the roof of a house could and would reduce the interior temperature of the living zones of the house by 10°C, regardless of the colour of the InfraCool roof paint which was used.
35 Accordingly, I answer question 1 in the negative.
36 I now consider whether the colour card conveyed the InfraCool energy saving representation.
37 As mentioned, the applicant contended that in publishing and distributing the colour card, the respondent represented that applying the InfraCool roof paint to the roof of the house “can and will significantly reduce the cooling energy consumption costs associated with that house, by reducing the interior temperature”.
38 The respondent, on the other hand, contended that the representation made was that applying the paint to the roof of a house “can and will reduce the energy consumption costs with respect to cooling associated with that house, by reducing the interior temperature, which reduction may be significant”.
39 The difference between the parties in respect of this representation is in relation to the significance of the reduction in cooling energy consumption costs associated with using the InfraCool roof paint, rather than conventional roof paint.
40 The ambit of the debate is, therefore, similar to that in relation to the 10 degrees cooler representation.
41 In support of its contention, the applicant referred to the words “Reduces Cooling costs” as one of the four prominent “declaratory statements” on the second page of the colour card. The applicant also relied on the following statement which appears immediately above the first thermometer image:
Due to their large surface area and angle of exposure, ROOF SURFACES capture enormous amounts of the Suns energy and thus COOL ROOFS offer significant gains in the energy efficiency of a structure.
42 The applicant contended that this sentence expresses energy efficiency gains as significant and as more than a mere possibility. That meaning, said the applicant, was reinforced in the mind of the consumer by the fact that the text appeared immediately above the following sentence: “InfraCOOL reflects both Visible and Invisible rays keeping surfaces COOLER” and two associated orange/red heat arrows being deflected from the roof by the InfraCool paint.
43 The applicant also relied upon the following sentence printed in blue immediately adjacent to the first thermometer image: “Living zones remain COOLER for longer, reducing cooling energy demand and cost”. The applicant contended that this sentence did not contain any suggestion that the reduction on energy demand and cost, attendant upon the use of InfraCool paint, would be insignificant. The applicant also made the wider point that there would be little point in representing to consumers that there would be a reduction in cooling costs if such reduction may be insignificant.
44 The applicant’s contentions are not accepted.
45 There is an inextricable relationship between each of the three representations contended for by the applicant.
46 As the respondent submitted, the 10 degrees cooler representation is a “building block” for the InfraCool energy saving representation, which in turn is a “building block” for the lower carbon footprint representation.
47 In my view, an ordinary or reasonable consumer who reads the colour card would consider the statements in the colour card, relied upon by the applicant, in support of this representation, in the context of the rest of the information conveyed by the colour card. An ordinary or reasonable consumer would not view those statements in isolation. An ordinary or reasonable consumer would appreciate that the inextricable relationship between the statements made about a reduced interior temperature and lower energy costs. Therefore, for the reasons given, in relation to the 10 degrees cooler representation, an ordinary or reasonable consumer would appreciate that there would be a variation in the energy savings to be derived from using InfraCool paint, rather than conventional paint, depending upon the colour of the paint chosen, because the extent of such savings would be directly related to the extent of the reduction of the interior temperature in the house, which may or may not be significant.
48 Accordingly, I answer question 2 in the negative.
49 I now consider whether the colour card conveyed the lower carbon footprint representation.
50 The applicant claimed that the respondent had represented that applying the Dulux InfraCool paint to the roof of the house “can and will significantly reduce the carbon footprint or environmental effect, associated with that house, by reducing energy consumption”.
51 In support of its claim, the applicant referred specifically to the fact that the colour card contained the express words “Lowers Carbon Footprint” as one of the four declaratory statements.
52 The applicant contended that although the words “significant” or “significantly” were not contained within the phrase, the concept was imported by the use of the words “significant gains in energy efficiency” in the text referred to at [41] above, and the extent of temperature reductions (namely, 10°C) represented in the first thermometer image.
53 The applicant’s contentions are not accepted. The same reasoning which applied in rejecting the applicant’s contentions in relation to each of the 10 degrees cooler representation and the InfraCool energy saving representation applies mutatis mutandis to the applicant’s contentions in support of the making of the lower carbon footprint representation.
54 It follows that I answer question 3 in the negative.
InfraCool fact sheet
55 The applicant also contended that the 10 degrees cooler representation and the lower energy saving representation were made by the language and get-up of the InfraCool fact sheet.
56 The InfraCool fact sheet comprises a single A4 document with printing on both sides of the document. In essence, the fact sheet comprises the same image and associated text as comprised the first thermometer image on p 3 of the colour card, and the same contents as contained on p 4 of the colour card, which, it will be recalled, included the FAQs.
57 This means that there are important differences between the fact sheet and the colour card. The first difference is the absence of the four declaratory statements, as set out in the colour card, and the text associated with each of those statements. As a result of this, the applicant does not contend that the lower carbon footprint representation was made.
58 The second important difference is that the fact sheet does not contain the 25 colour squares representing the range of colours available in InfraCool’s range of paints. It follows that the detailed information disclosing the heat reflective qualities of each of the different colours of the paint is not part of the fact sheet.
59 The applicant pleaded as follows in relation to the InfraCool fact sheet.
18 The InfraCOOL Fact Sheet included:
(a) the following image (Second Thermometer Image):
(b) the words “Living zones remain COOLER for longer, reducing cooling energy demand and cost” (emphasis as per the original);
(c) the words “For a typical Dark Grey-Black Roof a surface temperature difference of 10-20°C can be demonstrated which translates into less heat flow into roof & living spaces”;
(d) the words “Due to their large surface area and angle of exposure, ROOF SURFACES capture enormous amounts of the Suns energy and thus COOL ROOFS offer significant gains in the energy efficiency of a structure” (emphasis as per the original); and
(e) the words “Living zones remain COOLER for longer, reducing cooling energy demand and cost” (emphasis as per the original).
19 In the context of the InfraCOOL Fact Sheet as a whole, the words and images referred to in paragraphs 18(a), 18(b) and 18(c) conveyed the 10 Degrees Cooler Representation.
20 …
21 In the context of the InfraCOOL Fact Sheet as a whole (including the words and images in paragraphs 18(a), 18(b) and 18(c) above) the words quoted at paragraphs 18(d) and 18(e) conveyed the InfraCOOL Energy Saving Representation.
22 …
60 The applicant adopted its submissions in support of the 10 degrees cooler representation and the InfraCool energy saving representation made in respect of the colour card.
61 The respondent similarly adopted its submissions in support of the 10 degrees cooler representation and the InfraCool energy saving representation made in respect of the colour card.
62 In my view, the class of consumers to whom the representations in the colour card are addressed, would be the same class of consumers to whom the colour card is addressed. That is, persons who are contemplating undertaking an infrequent but important and relatively expensive consumer transaction that would affect the long-term appearance of their home.
63 As I have mentioned, an ordinary or reasonable consumer would take some considerable care in selecting the roof paint and would undertake research before deciding what roof paint to buy.
64 The appearance of the colour card is, as I have said, different from that of the fact sheet in that the explicit information associated with each of the 25 colour squares in the colour card is not present in the fact sheet. As I have also said, that information would, in my view, have contributed to an ordinary or reasonable consumer understanding that the representations, contended for by the applicant in respect of the colour card, had not been made.
65 The question is whether the absence of that information as well as the headline statement and the four declaratory statements would cause an ordinary or reasonable member of the class of consumers to come to a different understanding as to the content of the representations made.
66 Not without some hesitation, I have come to the view that, as in relation to the representations made in the colour card, an ordinary or reasonable consumer would understand the fact sheet to represent that the extent of the reduction of the interior temperature would vary depending upon, amongst other things, the colour of the paint used. And that, likewise, the extent of energy savings would be similarly qualified.
67 My reasons for coming to this view are that the image of the house in the fact sheet (referred to in the pleading as the “second thermometer image”) specifically compares a roof painted with InfraCool Black System paint, and a roof painted with conventional black paint. Further, there is small print text which is immediately below the image which qualifies the representations as to temperature in the image. Secondly, the fact that the result is reflected in that image is not intended to apply across-the-board, regardless of the colour chosen, is made explicit in the FAQs on the reverse side of the page, and by reference to the chart at the bottom of that reverse side page.
68 It is worth emphasising in this respect that I have accepted that an ordinary or reasonable member of the class of consumers would take care in closely reading the information in the fact sheet. In this case, the fact sheet comprises only two pages and aside from the image and related text on p 1, the information regarding the paint is contained on p 2 of the document. In my view, the relevant ordinary or reasonable consumer would read the print under the rubric of FAQs and appreciate that the extent of the interior temperature reduction and attendant energy savings would be variable depending, amongst other things, upon the colour of the paint chosen.
69 For the reasons given above, each of question 4 and 5 is answered in the negative.
the representations in relation to the hEat reflect wall paint
70 The applicant contended that during the period October 2011 to at least September 2012, Dulux embarked upon a diverse advertising and marketing campaign in respect of its product, Weathershield Heat Reflect wall paint. This paint was intended to be applied to the exterior walls of a house.
71 The applicant contended that the impugned representations were made by the respondent in the course of conducting the following activities:
(a) the publication and distribution of promotional material comprising flyers and standees,
(b) the publication of an advertisement on the Dulux web page,
(c) the production and distribution of a colour card for the paint,
(d) the production and distribution of labels for the outside of cans of paint,
(e) the publication of an advertisement video on Dulux’s Facebook page,
(f) the placing of information advertisements in newspapers and magazines distributed throughout Australia,
(g) the publication and distribution of press releases,
(h) the broadcast of television commercials, (including a segment in a television show, Better Homes & Gardens),
(i) the production and broadcast of a You Tube advertising video, and
(j) the joint production and broadcast of a video with a company, Conergy Australia Pty Ltd.
72 The applicant contended that each of the aforementioned materials contained one or more of three representations as to the benefits of using the Dulux heat reflect paint which was misleading or deceptive or likely to mislead or deceive. Some, but not all, of the materials, said the applicant, contained all three of the alleged representations.
Heat reflect promotional material
73 I deal first with the dispute as to the content of the representations said to be made in the heat reflect promotional material comprising promotional flyers and standees. The promotional flyer is a single page document with printed material on both sides which could be taken away by a potential customer. The standee is a self-standing cardboard display which was displayed at the point of sale in hardware stores with printed material on both sides.
74 The front page of each flyer and standee showed a picture of a can of Dulux heat reflect paint along with the words and image referred to in [75] below. The reverse side of each flyer and standee contained images of two rooms – one whose exterior wall had been painted with standard wall paint and the other whose exterior wall had been painted with Dulux heat reflect paint. The applicant referred to the images of the two rooms and the accompanying text as the “room comparison image”.
75 The applicant relevantly pleaded as follows.
27 From about October 2011 until at least September 2012, Dulux advertised Heat Reflect Paint by publishing and distributing throughout Australia in-store point of sale material being a promotional flyer and standees (self standing cardboard displays)…(Heat Reflect Promotional Material).
28 The Heat Reflect Promotional Material was:
(a) displayed, provided or made available to consumers for the purpose of promoting the sale of Heat Reflect Paint; and
(b) displayed, provided or made available to consumers in hardware an paint stores where Heat Reflect Paint was sold.
29 The Heat Reflect Promotional Material included:
(a) the following image of a blue arrow marked with the text “up to 15 degrees cooler” (15 Degree Cooler Arrow), closely associated with an image of the paint tin:
(b) the words:
(i) “Reflects heat to keep your home cooler”;
(ii) “Revolutionary technology that reflects radiant heat, lowering the surface temperature of your home”;
(iii) “Standard paint absorbs radiant heat from the sun, which may transfer to the inside of your home”; and
(iv) “reflects radiant heat, keeping your home cooler”; and
(c) The following image and accompanying text (Room Comparison Image):
30 In the context of the Heat Reflect Promotional Material as a whole, the words and images referred to in paragraph 29 conveyed a representation to the effect that applying Heat Reflect Paint to the exterior walls of a house can and will reduce the surface temperature of those walls by up to 15 degrees Celsius (Exterior Temperature Reduction Representation).
31 …
32 In the context of the Heat Reflect Promotional Material as a whole, the words and images referred to in paragraph 29 conveyed a representation to the effect that applying Heat Reflect Paint to the exterior walls of a house can and will significantly reduce the interior temperature of that house (Interior Temperature Reduction Representation).
33 ...
76 I set out below in summary form, each of the representations contended for by the applicant and the responsive contention made by Dulux.
|
Representation |
Applicant |
Respondent |
|
Exterior temperature reduction |
Applying Heat Reflect Paint to the exterior walls of a house can and will reduce the surface temperature of those walls by up to 15°C. |
Applying Heat Reflect Paint to the exterior walls of a house can reduce the surface temperature of those walls by up to 15°C. |
|
Interior temperature reduction |
Applying Heat Reflect Paint to the exterior walls of a house can and will significantly reduce the interior temperature of that house. |
Applying Heat Reflect Paint to the exterior walls of a house can and will reduce the interior temperature of that house. |
77 As is evident from the foregoing, the difference between the parties in relation to the exterior temperature reduction representation is whether the flyers and standees conveyed that the representation that the application of Dulux heat reflect paint “will”, rather than “can”, reduce the surface temperature of the exterior walls of a house by up to 15°C.
78 The applicant submitted that when each of the documents comprising the promotional material was considered as a whole, the alleged exterior temperature reduction representation was made. The applicant contended that the words on the first page of each document would influence the mind of the reader. The “first and most prominent claim”, said the applicant, was conveyed by the headline statement: “Reflects heat to keep your home cooler”. This statement was followed by the words: “Revolutionary technology that reflects radiant heat, lowering the surface temperature of your home” which is then followed by words on the image of a blue arrow that state: “up to 15 degrees cooler” (15 degree cooler arrow). The applicant drew particular attention to the use of the words “your home” in two of the statements and said that a consumer would be influenced by the use of those two words to understand that he or she would experience the benefit of the represented attributes of the paint if he or she used the paint to paint the walls of his or her home, and not that the represented attributes were abstract and only capable of achievement in tests or studies.
79 Further, the applicant contended that the representations conveyed by the express words also had to be considered in the context of the impact of the room comparison image which would strongly influence the mind of a consumer.
80 The applicant contended that it was unlikely that a consumer would interpret the promotional material as representing that the application of the Dulux heat reflect paint, rather than standard paint, may not yield any benefit to the particular consumer.
81 The respondent contended that the words “up to” in the phrase “up to 15 degrees cooler” (which forms part of the 15 degree cooler arrow), when read by consumers, would indicate, in and of themselves, that the extent of any exterior surface temperature reduction would not be 15°C cooler in every case. The respondent went on to contend that those words were wide enough to convey to a consumer the prospect that the application of the Dulux heat reflect paint, rather than standard paint, may yield no surface temperature reduction at all.
82 The respondent also drew attention to the ^ symbol adjacent to the word “cooler” in the phrase “up to 15 degrees cooler” and its associated fine print which stated:
Surface temperature reduction varies depending on the colour chosen, the substrate and weather conditions. See can for details.
83 The associated fine print is on the reverse side of the promotional flyer to that of the ^ symbol. However, the fine print associated with the 15 degree cooler arrow in the standee, is at the bottom of the same page of the standee. The respondent contended that the express reference in the fine print to the fact that the surface temperature reduction “varies” together with the presence of the words “up to” in the 15 degree cooler arrow were “as a matter of both language and logic”, inconsistent with the applicant’s exterior temperature reduction representation contention.
84 The applicant took issue with the adequacy of the 15 degree cooler arrow ^ symbol and its associated small print as a means of qualifying the “up to 15 degrees cooler” statement and the other elements of the promotional material. The applicant contended that the fine print was in very small font and on the reverse side of the flyer. Therefore, it was unlikely that anyone other than a particularly attentive consumer would observe the symbol, turn the page and read the fine print. The fine print was, therefore, said the applicant, an inadequate means of overcoming the powerful impression made by the other elements of the promotional material.
85 In any event, said the applicant, the use of the words “up to” in the phrase “up to 15 degrees cooler” when read with the content of the associated small print did not prevent a representation being conveyed that the application of the paint “will” yield a benefit.
86 At issue between the parties in relation to the applicant’s contention that the interior temperature reduction representation was made, is whether the promotional material conveys a representation that the application of the Dulux heat reflect paint rather than standard paint, “can and will significantly reduce the interior temperature of the house”, rather than, as the respondent contends, “can and will reduce the interior temperature of the house”.
87 The applicant contended that notwithstanding the absence of the word “significantly” in the text of the statements comprising the promotional material, the impression that would be conveyed to a consumer was that the application of the Dulux heat reflect paint, rather than standard paint, would significantly reduce the interior temperature of the house. The relevant inquiry, according to the applicant, is whether the promotional material conveys a sense of the extent of interior temperature reduction that would be achieved or whether a consumer would appreciate that only an insignificant reduction in interior temperature would be achieved.
88 In this regard, said the applicant, it was important to appreciate that the concern of a consumer purchasing the Dulux heat reflect paint would be the prospect that the use of the paint would lead to the reduction of the interior temperature of his or her home. It would be difficult, said the applicant, to see any meaningful benefit to a consumer in a reduction in exterior surface temperature that did not flow on to an interior temperature reduction. Accordingly, the applicant contended that the mind of the consumer would be focused on looking for a representation as to the effect of the use of the heat reflect paint on the interior temperature of his or her home.
89 The applicant submitted that several aspects of the promotional material contributed to conveying the representation that the reduction in the surface temperature of the exterior wall would lead to a significant reduction in the interior temperature of the house.
90 The applicant drew particular attention to the powerful impact of the graphic comparison between the interior temperature of the two rooms depicted in the room comparison image (see para 29(c) of the statement of claim). The applicant contended that the combination of the text and the powerful impact of the room comparison image would leave the reader with the clear impression that the use of the Dulux heat reflect paint would make the inside of his or her home significantly cooler. Accordingly, contended the applicant, a consumer viewing the promotional material would understand the respondent to be representing that should he or she apply the Dulux heat reflect paint to an exterior wall, he or she would experience a significant reduction in the interior temperature of the house.
91 The respondent accepted that by reason of the words and images in the promotional material, a representation was made that applying the Dulux heat reflect paint to the exterior walls of a house can and will reduce the interior temperature of that house. However, the respondent contended that the promotional material did not contain any quantitative statements about the interior temperature reduction that may be achieved nor any reference to “significant” or “significantly”.
92 The respondent also emphasised the interrelated nature between the exterior and interior temperature reduction representations. According to the respondent, the exterior temperature reduction representation (contended for by the applicant) embraced the prospect that the exterior temperature reduction may be as low as 1°C or as high as 15°C. Thus, said the respondent, it did not follow that a reduction in the exterior surface temperature would translate into a “significant” reduction in the interior temperature of the house. A consumer, said the respondent, would know that if there was only a minimal exterior surface temperature reduction, it could not possibly translate into a significant interior temperature reduction.
93 It is first necessary to identify the class of consumers to whom the representations in the promotional material were addressed and the attributes of an ordinary or reasonable member of that class.
94 In my view, the representations were addressed to a consumer who may be thinking of painting the walls of his or her home at some time in the future, but not to that class of consumers who were committed to undertaking that exercise, and were contemplating the type of paint to use. An ordinary or reasonable member of the former class of consumers would, in my view, not be as cautious as an ordinary or reasonable member of the latter class of consumers. An ordinary or reasonable consumer would, therefore, view the flyer and standee without taking the same degree of care to scrutinise or analyse the contents of the documents, as would an ordinary or reasonable member of the latter class.
95 There is, in my view, an inextricable relationship between the content of the exterior and interior temperature reduction representations. Because of the interdependent relationship between the content of the two representations, it is, in my view, necessary to consider each of the documents comprising the heat reflect promotional material as a whole in order to determine whether an ordinary or reasonable consumer would have understood either or both of the representations, contended for by the applicant, to have been made.
96 I consider, first, the contention that the exterior temperature reduction representation was made. In my view, an ordinary or reasonable consumer would regard the promotional material as conveying the representation that the application of the Dulux heat reflect paint rather than standard paint, to an exterior wall could and would result in the reduction of the surface temperature of that wall by up to 15°C cooler. In other words, I accept the contention made by the applicant that by publishing the documents comprising the heat reflect promotional material, Dulux made the exterior temperature reduction representation.
97 I have come to that conclusion for the following reasons. First, as I have said, the content or tenor of the representation conveyed is to be derived from a consideration of each of the flyer and standee as a whole. In this regard, I accept the applicant’s contention that the interest of an ordinary or reasonable consumer would be with the effect of using the heat reflect paint on the interior temperature of the house, and that an ordinary or reasonable consumer would not be particularly interested in a paint whose virtue was to reduce the exterior surface temperature of a wall if that did not translate into the tangible benefit of a cooler interior room temperature.
98 In my view, therefore, an ordinary or reasonable consumer reading each of the documents comprising the promotional material, would be influenced, not only by the headline statements which referred to lowering the surface temperature of “your home” and the 15 degree cooler arrow, but also by the other words and images relied on by the applicant which linked the reduced surface temperature of the exterior wall with a cooler interior room temperature.
99 In this regard, it is significant to note the vivid contrast depicted between the two rooms in the room comparison image. The wall painted with standard paint is depicted as not deflecting any of the three orange/red heat arrows with the consequence that the heat represented by the three orange/red heat arrows is transmitted into the interior of the house. By contrast, the picture of the wall painted with the Dulux heat reflect paint is depicted as being totally effective in deflecting all three orange/red heat arrows with the result that no orange/red heat arrows find their way into the house. In addition, the colour blue is used to depict the cool interior temperature and tranquil atmosphere of the house. By contrast, the orange/red colours of the heat arrows which have penetrated into the other room of the house, suggest a hot and uncomfortable room.
100 In my view, the room comparison image would be a powerful contributory factor in influencing an ordinary or reasonable consumer viewing each of the flyer and standee, to conclude that the words and images in each document conveyed the representation that the application of the Dulux heat reflect paint, rather than standard paint, to an exterior wall, would (rather than “may”) be effective in delivering a tangible benefit by reducing the exterior surface temperature of the wall by up to 15°C.
101 The respondent contended that there were, in particular, two aspects of the content of the documents which defeated the applicant’s contention. The first was the use of the word “may” in the sentence: “Standard paint absorbs radiated heat from the sun which may transfer to the inside of your home” adjacent to the image of the room whose exterior wall is painted with standard paint. The second was the presence of the ^ symbol next to the words “up to 15 degrees cooler” and the related small print, which said the respondent, qualified the impact of the room comparison image itself and the other statements relied on by the applicant.
102 I do not accept that contention.
103 First, the presence of the word “may”, in that sentence, does not, in the context in which it appears, do sufficient work to convey the message contended for by the respondent, namely, that the benefit portrayed in the room comparison image, may not occur, and that there may well be no benefit at all in using Dulux heat reflect paint, rather than standard paint. In light of the power of the message conveyed by the room comparison image and the other headline statements, the use of the word “may” in that sentence, is an inadequate means of conveying the qualified message contended for by the respondent. The capability of the word “may” to convey that message is comprehensively undermined by the room comparison image itself which depicts a very different scenario, namely, an emphatic benefit accruing to the consumer from using Dulux heat reflect paint, rather than standard paint.
104 Secondly, I do not accept that the content of the fine print which is associated with the symbol ^ adjacent to the words “up to 15 degrees cooler” would lead an ordinary or reasonable consumer to understand that the application of the Dulux heat reflect paint may not lead to any reduction in the exterior surface temperature of the wall painted with that paint rather than standard paint. This is because, in my view, an ordinary or reasonable consumer would understand that it is implicit in the use of the words “up to” in the phrase “up to 15 degrees cooler” that there would be some reduction in the exterior surface temperature of the wall and that the extent of that reduction up to the limit of 15°C would vary depending upon the colour chosen, the substrate and the weather conditions.
105 As I have said, an ordinary or reasonable consumer of the promotional material, would not take particular care in reading the flyer and standee, and in construing the message conveyed, would be influenced by the overall impression created by each document as a whole, rather than by a reflective analysis of the possible meaning of the words. For this reason, an ordinary or reasonable consumer would not in construing the message conveyed embark upon the process of reasoning contended for by the respondent at [92] above.
106 The respondent also contended that common sense dictated that there may be circumstances where there would be no positive advantage to be obtained by using Dulux heat reflect paint and, therefore, an ordinary or reasonable consumer would not conclude that the flyer and standee conveyed the exterior temperature reduction representation, because this representation carried with it the implication that the application of the paint would always deliver an exterior surface temperature reduction to the consumer. Thus, for example, said the respondent, if the Dulux heat reflect paint was applied to a wall which was always in the shade, there would be no advantage in using heat reflect paint rather than standard paint.
107 As I have previously mentioned, an ordinary or reasonable consumer reading the flyer and standee, would be strongly influenced by the overall impression created by the get-up and headline statements made in those documents.
108 In my view, an ordinary or reasonable consumer would not understand the representation to be addressed to the circumstance such as that of a wall which was always in the shade. In particular, this is because the blazing sun image plays such a prominent part in the room comparison image. An ordinary or reasonable consumer would understand the representation as applying to the comparative advantage in using heat reflect paint to paint an exterior wall of a house exposed to the sun’s heat. The room comparison image as well as the Weathershield logo itself (which depicts heat emanating from a blazing sun), make it clear that the representations as to the reflective qualities of the paint are premised on the exterior wall being exposed to radiant heat generated by exposure to the sun.
109 Accordingly, I answer question 6 in the affirmative.
110 I now deal with the question of whether the promotional material conveyed the interior temperature reduction representation. As mentioned, the respondent accepted that the words and images in the flyer and standee conveyed the representation that applying Dulux heat reflect paint to the exterior walls of a house could and would reduce the interior temperature of the house. The difference between the parties was that the applicant contended that the representation conveyed was that the application of the Dulux heat reflect paint to the exterior walls of a house would “significantly” reduce the interior temperature of the house.
111 In my view, the applicant’s contention is to be upheld.
112 As I observed when discussing the exterior temperature reduction representation, the room comparison image has a powerful influence on the content of the representation which would be conveyed to an ordinary or reasonable consumer reading the promotional material.
113 In contrast to the position in relation to the InfraCool colour chart, the heat reflect promotional material is devoid of the range of information explaining in some detail the different heat reflective qualities of the colours of the Dulux paint. Further, the importance of the colour of the Dulux paint in achieving the represented results (as portrayed by the InfraCool image which expressly refers to and depicts the relative position when the roof is painted with InfraCool Black System paint, and black conventional paint) is not conveyed in the room comparison image which is so prominent in the flyer and standee.
114 In the case of the flyer and standee, such qualifying information as there is, is in very small print and does not descend into the detailed heat reflective capability information of each of the Dulux colours to be found in the InfraCool colour chart. The qualifying information in the flyer and standee would not, therefore, in the mind of an ordinary or reasonable consumer, dispel the powerful impression which is created by the room comparison image.
115 In my view, therefore, an ordinary or reasonable consumer, looking at each of the flyer and standee as a whole, would be particularly influenced by the overwhelming power of the room comparison image and would understand the respondent to be representing that the application of the Dulux heat reflect paint, rather than standard paint to the exterior walls of a house, would result in a significant reduction to the interior temperature of the house.
116 Accordingly, I answer question 7 in the affirmative.
Dulux web pages
117 The applicant also claimed that Dulux made the impugned representations at each of the two different Dulux web pages. I will distinguish between the web pages by referring to the first web page and the second web page.
118 The applicant pleaded as follows in relation to the Dulux web pages:
35 The Dulux Web Pages included:
(a) the 15 Degree Cooler Arrow;
(b) the words:
(i) “Reflects heat to keep your home cooler”;
(ii) “Heat Reflect reflects radiant heat, keeping your home cooler”;
(iii) “Revolutionary technology that reflects radiant heat, lowering the surface temperature of your home”;
(iv) “helps keep your home cooler and more comfortable”;
(v) “Standard paint absorbs radiant heat from the sun, which may transfer to the inside of your home”;
(vi) “reflects radiant heat and reduces outside surface temperatures by up to 15 degrees” and “this in turn keeps the inside cooler, which may assist you to reduce your need for power hungry energy cooling devices and save on energy costs”; and
(vii) “reflects radiant heat and reduces outside surface temperatures by up to 15 degrees”; and
(c) The Room Comparison Image.
36 The Dulux Web Pages…also contained the words:
(a) “reflects radiant heat and reduces outside surface temperatures by up to 15 degrees”; and
(b) “this in turn keeps the inside cooler, which may assist you to reduce your need for power hungry energy cooling devices and save on energy costs”.
37 In the context of the Dulux Web Pages as a whole, the words and images referred to in paragraph 35 conveyed the Exterior Temperature Reduction Representation.
38 …
39 In the context of the Dulux Web Pages as a whole, the words and images referred to in paragraph 35 conveyed the Interior Temperature Reduction Representation.
40 …
41 In the context of the Dulux Web Pages as a whole, the words and images referred to in paragraph 36 conveyed a representation to the effect that applying Heat Reflect Paint to the exterior walls of a house can and will significantly reduce the energy consumption costs associated with that house by reducing the interior temperature (Heat Reflect Energy Saving Representation).
42 …
119 As is apparent from the pleading set out above, the applicant alleged that the exterior temperature reduction representation and interior temperature reduction representation were made by the words and images contained in each of the two Dulux web pages; and that an additional representation, namely, the heat reflect energy saving representation was also made. The web page address for each of the two web pages is slightly different, and the content of each web page is also different.
120 Each of the Dulux web pages contains similar text and imagery to the flyer and standee. However, each web page contains the additional text pleaded at 35(b)(iv) and (vi) of the statement of claim (see [118] above). The text pleaded at 35(b)(vi) is particularly relevant to the applicant’s contention in relation to the heat reflect energy saving representation. This text reads:
[T]his in turn keeps the inside cooler, which may assist you to reduce your need for power hungry energy cooling devices and save on energy costs.
121 An important difference between each of the Dulux web pages is that the second of the two web pages included a link to a document entitled “TSR Data Sheet Brochure” (TSR data sheet). This document was available to be downloaded from that web page as a PDF document. This document also differentiates the content of the second web page from the content of the flyer and standee. I will deal with the effect of the TSR data sheet on the representations conveyed by the second web page in due course.
122 In my view, the class of consumers to whom the representations in the Dulux web pages were addressed are in the same category as the class of consumers to whom the representations made in the flyer and standee were addressed. An ordinary or reasonable member of this class of consumers would have the same attributes as an ordinary or reasonable member of that class of consumers.
123 For the following reasons, I am of the view that, the words and images comprising the first of the Dulux web pages would convey the exterior temperature reduction representation to an ordinary or reasonable consumer viewing that web page.
124 As mentioned, the words and images must be considered as a whole. The effect of the words and images, including, in particular, the room comparison image, on an ordinary or reasonable consumer, to which I referred in relation to the flyer and standee, also apply in relation to those same words and images which appear on the first web page. Therefore, my reasoning in relation to the representations conveyed to an ordinary or reasonable consumer by the flyer and standee, applies equally in relation to the representations that would be conveyed by the words and images on the first web page.
125 There are, however, additional words contained on the first web page which would, in my view, further influence an ordinary or reasonable consumer to understand that web page as conveying the exterior and interior temperature reduction representations contended for by the applicant.
126 These additional words are: “helps keep your home cooler and more comfortable” (pleaded at para 35(b)(iv)) and the related words: “this in turn keeps the inside cooler which may assist you to reduce your need for power-hungry energy cooling devices and save on energy costs” (pleaded at para 35(b)(vi)).
127 These words reinforce the impression powerfully created by the room comparison image of the Dulux heat reflect paint being completely effective in preventing any heat depicted by the orange/red heat arrows from permeating the wall into the house whose wall was painted with Dulux paint.
128 In my view, an ordinary or reasonable consumer would construe the additional words (pleaded at para 35(b)(vi)) as suggesting that the use of Dulux heat reflect paint will be effective in reducing the interior temperature so that, in some circumstances, the extent to which it will be necessary to run the air-conditioning unit will be reduced. This statement in combination with other words and images would further reinforce the impression that tangible, rather than potential, benefits would flow from the use of the heat reflect paint.
129 In my view, an ordinary or reasonable consumer would understand the representation conveyed by the combination of the words and images to be that the application of the Dulux heat reflect paint to the exterior wall of his or her home would deliver a positive benefit by reducing the exterior surface temperature of the wall by up to 15°C and would significantly reduce the interior temperature of the house.
130 Accordingly, I answer each of question 8 and 9 in the affirmative.
131 I now deal with the applicant’s contention that the heat reflect energy saving representation was made.
132 As is apparent from the statement of claim, the applicant relies particularly upon the words pleaded at para 36 in support of this claim. Paragraph 36 reads as follows:
36 The Dulux Web Pages at paragraph 34 also contained the words:
(a) “reflects radiant heat and reduces outside surface temperatures by up to 15 degrees”; and
(b) “this in turn keeps the inside cooler, which may assist you to reduce your need for power hungry energy cooling devices and save on energy costs”.
133 The applicant contended that the words and images on each of the Dulux web pages, conveyed the representation that the application of Dulux heat reflect paint to the exterior walls of a house “can and will significantly reduce the energy consumption costs with respect to cooling associated with that house by reducing the interior temperature”. The respondent, however, contended that the representation conveyed is that applying the heat reflect paint to the exterior walls of a house, “by reducing the interior temperature, may reduce the energy consumption costs with respect to cooling associated with that house”.
134 The respondent said that there is only limited reference to energy savings in each of the web pages, namely, that pleaded at para 36(b) of the statement of claim. The respondent also said that the express reference to energy costs savings is couched in qualifying words such as “helps” and “may assist”, which did no more than suggest that a reduction in cooling energy costs is possible. Further, said the respondent, quantitative words, such as “significant” are not used.
135 The applicant contended that notwithstanding the presence of the words “helps” and “may assist”, a consumer would, influenced by the power and combination of the other words and images, conclude that the reduced exterior and interior temperatures would lead to a significant reduction in energy costs. The applicant contended that having viewed the Dulux web pages, a consumer would think that “my home will be up to 15 degrees cooler and that will save money on my energy bills”. A consumer, said the applicant, was likely to have the strong impression that the extent of the energy costs saving would be significant because they were the result of reductions of temperatures of up to 15°C.
136 The applicant’s submissions are not accepted. In my view, an ordinary or reasonable consumer viewing the Dulux web pages would not conclude that a representation was conveyed that the energy savings would be significant. Rather, in the absence of the words “a significant savings in energy costs”, an ordinary or reasonable consumer would conclude that the interior temperature would be significantly reduced and this reduction may on occasions reduce the extent to which air-conditioning would need to be used, but not to the extent that significant savings in energy costs would be made.
137 In other words, whilst an ordinary or reasonable consumer viewing the Dulux web pages, would conclude that the use of the Dulux paint would result in some saving in energy costs associated with the running of air-conditioning equipment, he or she would not conclude that the savings would be significant.
138 Accordingly, I answer question 10 in the negative.
139 I now deal with the second Dulux web page.
140 In addition to containing the same words and images as the first Dulux web page, as mentioned, the second Dulux web page contained a link to a downloadable TSR data sheet.
141 This two page document comprised a significant amount of text and also comprises a chart of colours in which the Dulux heat reflect paint is available. Adjacent to each colour, the text records the difference in the amount of the heat reflective capacity of each of the colours, compared to standard paint.
142 The bottom third of the page comprises an image comparing the exterior surface temperatures of two walls – one painted with standard paint and one with Dulux heat reflect paint – and the consequential effect upon the interior temperature of the associated room. There is a thermometer in each room. The thermometer in the room painted with Dulux heat reflect paint reflects a substantially lower reading in interior temperature. The respondent contended that the text and images qualify the representations otherwise made about the capability of the heat reflect paint, such that a consumer would understand the exterior surface temperature of the wall would vary depending on the choice of colour and weather conditions. The respondent again relied upon the words “up to” and “may” as constituting sufficient qualifying words. The respondent also referred to words on the TSR data sheet to the effect that specific test reports describing the exterior surface temperature benefits were available from a Dulux web page address, as indications that the exterior surface temperature benefits would vary with the colour applied. The respondent also relied upon the ^ symbol adjacent to the words “up to 15°C” and the usual associated qualifying text; and also the following words: “the actual surface temperature could vary greatly when influenced by weather conditions such as cloud cover and wind”, which formed part of the text of the TSR data sheet. There is also a statement in the TSR data sheet that the surface temperature example was based on the colour “Woodland Grey”.
143 In my view, the presence of the information in the TSR data sheet does substantially affect the context within which the representations made in the second web page are to be construed. However, the qualifications expressed in the TSR data sheet are substantially offset by the image of the two thermometers located in each of the two rooms which are compared in the room comparison image at the bottom of the page. This image conveys an impression that a significant interior temperature reduction will occur if the Dulux heat reflect paint, rather than the standard paint is used to paint an exterior wall. The power of the image overwhelms and the use of the word “can” in the sentence: “The heat can increase the temperature inside the home”, in the text immediately below the image of the room painted with standard paint. Further, the text beneath the image of the room painted with Dulux heat reflect paint states without further qualification, that the use of heat reflect paint will help keep the room “significantly cooler”.
144 Further, in my view, the information beneath each square of colour in the TSR data sheet, does not assist the respondent’s contention that the second web page conveyed the admitted exterior temperature reduction representation - which contemplated the prospect that the consumer may derive no reduction in exterior surface temperature by the application of Dulux heat reflect paint. The heat reflective information in relation to each of the colours on the TSR data sheet does not show one instance of a customer deriving no benefit in using Dulux heat reflect paint, rather than standard paint. All of the colours show a benefit, albeit that the extent of the benefit varies. Therefore, in my view, the TSR data sheet does not provide a qualification such as would undermine in the mind of an ordinary or reasonable consumer, the primary representation which conveys that there will be a tangible benefit in using Dulux heat reflect paint, namely, a reduction in the exterior surface temperature of up to 15°C, albeit that the extent of that reduction may vary.
145 In relation to the interior temperature reduction representation, the respondent advanced a further alternative representation as being conveyed, namely, that the application of Dulux heat reflect paint to the exterior walls of a house can and will reduce the interior temperature of a house which reduction may be significant.
146 The respondent submitted that there were no quantitative statements about the extent of the interior temperature reduction that may be achieved and pointed to the use of a number of qualifying words relating to interior temperature reduction. Accordingly, said the respondent, a consumer viewing the second web page would not understand that the application of Dulux heat reflect paint would cause a significant reduction in interior temperature.
147 As previously mentioned, when discussing the exterior temperature reduction, the qualifications relied upon are not sufficient to dispel the message conveyed to an ordinary or reasonable consumer by tenor of the headline statements and the powerful room comparison image, as well as the use of the words “significantly cooler” in association with the room painted with Dulux heat reflect paint in the room comparison image. This is particularly so in the context of an ordinary or reasonable consumer who would not closely analyse every word on the web page.
148 Accordingly, I answer each of question 11 and 12 in the affirmative.
149 As to the heat reflect energy saving representation, for the reasons given at [136] and [137] above, I answer question 14 in the negative.
Heat reflect colour card
150 The applicant also contended that the respondent had made each of the three representations by publishing and distributing in paint and hardware stores colour cards in respect of the Dulux heat reflect paint. The applicant pleaded as follows:
Heat Reflect Colour Card
43 From about October 2011 until at least September 2012, Dulux advertised Heat Reflect Paint by publishing and distributing an in-store colour card…(Heat Reflect Colour Card).
44 The Heat Reflect Colour Card was:
(a) provided or made available to consumers for the purpose of promoting the sale of Heat Reflect Paint; and
(b) provided or made available to consumers in hardware and paint stores where Heat Reflect Paint was sold.
45 The Heat Reflect Colour Card included:
(a) the following image (Wall Thermometer Image):
(b) the words:
(i) “reflects radiant heat and reduces outside surface temperatures by up to 15 degrees Celsius;
(ii) “up to 15 degrees Celsius cooler outside surface temperature”;
(iii) “reducing surface temperatures by up to 15 degrees Celsius”;
(iv) “helps keep your home cooler and more comfortable”;
(v) “this in turn helps keep the inside cooler, which may assist you to reduce your need for power hungry cooling devices and save on energy costs”; and
(vi) “Weathershield Heat Reflect reflects radiant heat, helping to keep your home significantly cooler inside and out”; and
(c) the following image (Child and Pet Image):
46 In the context of the Heat Reflect Colour Card as a whole, the words images referred to in paragraph 45 conveyed the Exterior Temperature Reduction Representation.
47 …
48 In the context of the Heat Reflect Colour Card as a whole, the words and images referred to in paragraph 45 conveyed the Interior Temperature Reduction Representation.
49 …
50 In the context of the Heat Reflect Colour Card as a whole, including the other words and images referred to at paragraph 45, the words referred to in paragraph 45(b)(v) conveyed the Heat Reflect Energy Saving Representation.
51 …
151 The heat reflect colour card is a document which has printing on both sides and is presented as a folded document.
152 In its folded state, the front page comprises a picture of a house which has been painted with Dulux heat reflect paint. Orange/red heat arrows are being reflected off the walls of the house and there is also the blue 15 degree cooler arrow dynamically reflecting off the surface of the house.
153 On turning the front page of the colour card, the right-hand side page comprises a full page picture of a room in which a dog and a smiling child are both lying on the floor. Blue tones are used in the picture to create a cool atmosphere. The picture is in the same form as the dog and child image in the comparative room advertisement. This page contains the headline words “helps keep your home cooler and more comfortable” and the blue 15 degree cooler arrow, and beneath the blue colour the words pleaded at para 45(b)(i) of the statement of claim appear.
154 When the right-hand page is folded out there is revealed a three page spread comprising a number of squares reflecting each of the available colours of the Dulux heat reflect paint.
155 The back page of the document in its folded state contains words and images which are particularly relied upon by the applicant in support of its contention that the colour card makes the three representations identified.
156 The top of the back page contains the words pleaded at para 45(b)(ii), (iii), (v) and (vi) of the statement of claim. However, dominating the back page is the wall thermometer image referred to in para 45 of the statement of claim. Beneath the image are two statements which compare the effect of painting the exterior wall of the house with standard paint and with Dulux heat reflect paint. The statements are located immediately beneath the corresponding wall and room in the image. There is a thermometer in each of the two rooms. In the room whose wall is painted with standard paint, the thermometer image is on a red wall and reflects a high temperature; whereas the thermometer in the room whose exterior wall is painted with Dulux heat reflect paint, is on a blue wall and reflects a much lower temperature.
157 In my view, the class of consumers to whom the representations in the colour card are directed would be the same class of consumers to whom the representations in the InfraCool colour card were directed. An ordinary or reasonable member of both classes would have the same attributes.
158 For the following reasons, an ordinary or reasonable consumer reading the colour card would construe the images and the words in the colour card to represent that the application of the Dulux heat reflect paint, rather than standard wall paint, to an exterior wall of a house would result in the surface temperature of that wall being up to 15°C cooler.
159 The colour card contained words and images which also formed part of the flyer and standee and the Dulux web pages. However, there are two additional features of the content of the colour card which, in my view, would further contribute to an ordinary or reasonable consumer concluding that the colour card conveyed the exterior temperature reduction representation and the interior temperature reduction representation.
160 The first feature is the prominence and the content of the wall temperature images. This image and the associated text occupies about half of the surface area of the back page of the colour card. In my view, this image is likely strongly to influence the perception of an ordinary or reasonable consumer in construing the content of the representation made by the publication. This image conveys in a graphic way that there will be a significant difference between the interior temperature of the rooms depending upon whether the walls are painted with Dulux heat reflect paint or standard paint. This impression is reinforced by the use of the red and blue interior wall colours and, in particular, by a comparison of the temperature displayed on the two wall thermometers depicted in the image. The thermometer in the room painted with Dulux heat reflect paint (illustrated in blue) is at an unspecified, but significantly lower temperature than the temperature recorded on the wall thermometer (illustrated in red) in the room painted with standard paint. The power of the image overwhelms and the use of the word “can” in the sentence: “The heat can increase the temperature inside the home”, in the text immediately below the image of the room painted with standard paint.
161 The second feature is that the statement immediately beneath the wall temperature image reflecting the use of Dulux heat reflect paint contains the words: “Up to 15°C cooler outside surface temperature” (printed in blue); and immediately below those words the words “Weathershield Heat Reflect reflects radiant heat, helping to keep your home significantly cooler inside and out”.
162 The fact that the document uses the words “significantly cooler inside and out” reflects what the author of the document intended to convey by the use of the deployment of the wall temperature image and, in my view, an ordinary or reasonable consumer would understand the colour card to be making that representation.
163 In my view, for the reasons given in relation to the flyer and standee and the Dulux web pages, the ^ symbol and the associated qualifying text would not in the mind of an ordinary or reasonable consumer do sufficient to qualify the powerful message conveyed by the combination of the headline statements, the wall thermometer image and dog and child images, that he or she would by using the Dulux heat reflect paint, obtain the tangible benefits represented.
164 Nor would the words “helps” and “helping” relied upon by the respondent in the words pleaded by the applicant in para 45(b)(iv), (v) and (vi), have, in the mind of an ordinary or reasonable consumer, sufficient impact in the overall context of the heat reflect colour card, to convey the significant qualification, contended for by the respondent, namely, that the use of Dulux heat reflect paint can, but may not, yield a reduction in the exterior surface temperature of the wall painted with that paint.
165 Further, the heat reflect colour card does not beneath each of the blocks of colour contain the detailed information about the heat reflective qualities of each of the paint colours, such as is contained in the InfraCool colour card. Therefore, an ordinary or reasonable consumer would not have the benefit of the detailed information available to the ordinary or reasonable consumer of the InfraCool colour card to qualify the powerful impact of the words and images on the remainder of the colour card.
166 In my view, therefore, an ordinary or reasonable consumer would construe the colour card as making both the exterior temperature reduction representation and the interior temperature reduction representation.
167 Accordingly, I answer each of question 15 and 16 in the affirmative.
168 The applicant contended that the colour card conveyed the heat reflect energy saving representation, namely, that applying the Dulux heat reflect paint to the exterior walls of a house will significantly reduce the energy consumption costs associated with that house by reducing the interior temperature.
169 The same issue arose between the parties in respect of the same alleged representation made in the Dulux web pages. The same submissions were advanced.
170 As I have said, the attributes of an ordinary or reasonable consumer to whom the colour card was addressed, would be different to that of an ordinary or reasonable consumer to whom the Dulux web pages were addressed. However, this circumstance does not change the view I have expressed in relation to the Dulux web pages. Therefore, for the reasons which I have set out at [136]-[137] above, I am of the view that the heat reflect energy saving representation was not made.
171 I, therefore, answer question 17 in the negative.
Heat reflect tins
172 The applicant also contended that the respondent had made the exterior temperature reduction representation and the interior temperature reduction representation by the statements made and get-up used on the heat reflect tins in which the heat reflect paint was sold. The applicant pleaded as follows:
Heat Reflect Tins
52 From about October 2011, Dulux manufactured, supplied and caused to be displayed for sale Heat Reflect Paint in tins (Heat Reflect Tins).
53 The labels of the Heat Reflect Tins…included:
(a) the 15 Degree Cooler Arrow; and
(b) the words:
(i) “reflects radiant heat and reduces surface temperatures”;
(ii) “keep surface temperatures cooler by up to 15 degrees”; and
(iii) “specially designed to reflect solar radiation and keep surface temperatures cooler by up to 15 degrees”.
54 In the context of the labels of the Heat Reflect Tins as a whole, the words and images referred to in paragraph 53 conveyed the Exterior Temperature Reduction Representation.
55 ...
56 In the context of the labels of the Heat Reflect Tins as a whole, the words and images referred to in paragraph 53 conveyed the Interior Temperature Reduction Representation.
57 In the alternative, in the context of the labels of the Heat Reflect Tins as a whole, the words and images referred to in paragraph 53 conveyed the Admitted Interior Temperature Reduction Representation.
173 In contrast to the previous media considered, namely, the flyer and standee, the web pages and the colour card, the tin label does not contain comparison images such as the room comparison image or the wall temperature image. The heat reflect tin label does, however, contain the 15 degree cooler arrow and the text referring to a reduction in surface temperature which is pleaded in para 53(b) of the statement of claim. The applicant relies upon those words and images in support of its contention that the tin label conveyed the exterior temperature reduction representation and interior temperature reduction representation.
174 The applicant noted that the 15 degree cooler arrow contains the ^ symbol and repeated its submission that the ^ symbol and associated text was an ineffective means of qualifying the statements and images it relied on as otherwise conveying the representations.
175 In my view, the statements and images on the tin label would be addressed to those consumers who were perusing cans of paint on display in a store, and those consumers who had already purchased the tin of paint. In either case, an ordinary or reasonable member of this class of consumers would not take great care in scrutinising or analysing the promotional statements on the tin label. This is because those consumers who had bought the paint would have carried out research on the paint before buying it, and the other category of consumers would be likely to make further inquiries before making the decision to purchase the paint. I should mention that it was an agreed fact that it would take about 24 to 30 litres of heat reflect paint to paint an average sized house at a cost of between $460 to $620.
176 The applicant also submitted that some consumers viewing the tin label would appreciate that the 15 degree cooler arrow and the reference on the label to “surface” temperatures being “cooler by up to 15 degrees” referred to the exterior surface temperature of a house. However, said the applicant a significant number of consumers would be likely to form their impression by having regard to the 15 degree cooler arrow alone. For those consumers, said the applicant, the likely impression was “my home will be up to 15°C cooler”.
177 Further, the applicant submitted that even those consumers who distinguished between the exterior surface temperature and interior temperature were likely to think in terms of their use of the paint delivering a benefit relevant to them. The applicant said that because a reduction in exterior surface temperature, absent an attendant reduction in interior temperature, would be of dubious utility to a consumer, he or she would understand the tin label to convey both the exterior and interior temperature reductions.
178 The respondent emphasised that when the question of whether the representations conveyed by the tin label was addressed, the Court should approach that question without regard to the representations that have been communicated in the other materials, previously considered by the Court, such as, for example, the flyer and standee.
179 The respondent contended that the tin label did not convey the exterior temperature reduction representation, nor the interior temperature reduction representation, nor indeed the admitted interior temperature reduction representation. In short, the respondent submitted that no representation was made in respect of the reduction of the interior temperature of the house painted with Dulux heat reflect paint. In this regard, the respondent’s position is, therefore, to be distinguished from the position the respondent has taken in respect of the other advertisements dealt with up until now.
180 The representation made on the tin label, said the respondent, only related to the reduction of the surface temperature of the exterior wall. The respondent contended that the representation conveyed by the tin label went no further than to state that the application of the Dulux heat reflect paint to the exterior wall of a house could, rather than would, reduce the surface temperature of the wall by up to 15°C. In support of its contention, the respondent relied upon its previous submissions that the ^ symbol and associated fine print and the words “up to” in the phrase “up to 15 degrees cooler” sufficiently qualify the associated headline words, so as to cause a consumer to understand that the representation conveyed no more than that the application of the heat reflect paint could, but not necessarily would, reduce the surface temperature of the wall by up to 15°C.
181 I do not accept the respondent’s contention. As mentioned before, in my view, even if the ^ symbol was effective in bringing the fine print to the attention of an ordinary or reasonable consumer, this would not cause an ordinary or reasonable consumer to understand that there may be no reduction of the surface temperature of the exterior wall even if the Dulux heat reflect paint, rather than standard paint, was applied to that wall. This is because the language of the qualification does not make this clear. The premise, in my view, underlying the language of the qualification is that whilst the extent of the reduction may vary, there will still be a reduction. As mentioned, the language, in my view, is not so clear as would cause an ordinary or reasonable consumer to appreciate that the application of the heat reflect paint may not yield any reduction in the surface temperature of the exterior wall.
182 In relation to the interior temperature reduction representation, contended for by the applicant, in my view, the language and get-up of the tin label did not go so far as to represent that the application of the heat reflect paint would significantly reduce the interior temperature of a house. Because of the relationship between the reduction of the exterior temperature and the reduction of the interior temperature, in my view, an ordinary or reasonable consumer would understand the representation that the surface temperature would be reduced by up to 15°C to include a representation that there would also be a reduction in the interior temperature. However, in the absence of the word “significant” or images which portray the interior temperature reduction as “significant”, an ordinary or reasonable consumer would not conclude that the interior temperature reduction would be significant.
183 I find that the admitted interior temperature reduction representation was made, but not the interior temperature representation.
184 Accordingly, I answer question 18 in the affirmative, question 19 in the negative and question 20 in the affirmative.
Facebook page
185 The applicant also alleged that the respondent had made the three primary representations in publishing material, including a video advertisement, on its Facebook page. The applicant pleaded as follows:
58 From about October 2011 until at least August 2012, Dulux published promotional material…including a video about Heat Reflect Paint on the Dulux page of the social media site, Facebook (Facebook Page).
59 The Facebook Page included:
(a) a picture of a tin of Heat Reflect Paint and the 15 Degree Cooler Arrow;
(b) the words “lowering the surface temperature of your home”; and
(c) a video which used images of red arrows entering a home coloured in orange and subsequent images of the same home reflecting red arrows and coloured blue after the application of Heat Reflect Paint, the 15 Degree Cooler Arrow and thermometers showing downward change in temperature after the application of Heat Reflect Paint and the:
(i) audible words “Reflects radiant heat away from the exterior surface reducing heat absorption and helping keep the inside cooler”;
(ii) written words “Reflects heat to keep your home cooler”;
(iii) written words “Revolutionary technology that reflects radiant heat;
(iv) written words “Reduces the effects of radiant heat on your home”;
(v) written words “Reduces the need for power hungry cooling devices, saving you money”; and
(vi) written words “Reflects radiant heat and reduces outside surface temperatures by up to 15°C”,
(Heat Reflect Video).
60 In the context of the Facebook Page as a whole, the words and images referred to in paragraph 59 conveyed the Exterior Temperature Reduction Representation.
61 ...
62 In the context of the Facebook Page as a whole, the words and images referred to in paragraph 59 conveyed the Interior Temperature Reduction Representation.
63 ...
64 In the context of the Facebook Page as a whole, including the other words in paragraph 59, the words and images referred to at paragraph 59(c)(iv), 59(c)(v) and 59(c)(vi) conveyed the Heat Reflect Energy Saving Representation.
65 ...
186 The Facebook page video is, to a large extent, a dynamic video representation of the room comparison image found in the flyer and standee. The video advertisement vividly portrays the difference between the room painted with standard paint and that painted with Dulux heat reflect paint. By dynamic sequences the video shows that the standard paint used on the exterior wall of one room is completely ineffective in preventing any of the orange/red heat arrows, generated by a bright orange sun, penetrating the wall of the room painted with that paint. On the other hand, the Dulux heat reflect paint is portrayed as being completely effective in deflecting the same orange/red heat arrows from the exterior surface of the wall, so that no orange/red heat arrow succeeds in penetrating the wall into the room.
187 During this dynamic sequence, there appears on the screen two thermometers which show that the surface temperature of the wall painted with standard paint is 15°C higher than the wall painted with Dulux heat reflect paint. Further, there is a thermometer in each of the two rooms. The thermometer reading for the standard paint room is reflected by a red bar; whereas the thermometer reading in the heat reflect paint room is reflected by a blue bar. The blue 15 degree cooler arrow also appears on the screen shortly after the introduction of the thermometers.
188 The video advertisement includes the spoken and written words pleaded at para 59(c)(i) to (vi), on which the applicant relied.
189 However, there are also other words spoken in the course of the advertisement. On one occasion the speaker says that the Dulux heat reflect paint “reduces the effect of radiant heat, especially if you are painting your home in dark colours”. On another occasion the speaker says that by using Dulux heat reflect paint “in the hotter months, this could mean savings on our energy bills”. Further, the standard qualifying fine print words, sometimes in conjunction with the ^ symbol, appear on the screen from time to time during the course of the video advertisement.
190 The applicant contended that the combined effect of the words and images in the video advertisement on the respondent’s Facebook page was to imbue a consumer watching the advertisement with the expectation that the heat reflect paint, if applied to the walls of his or her home, would reduce the surface temperature of the exterior wall by up to 15°C, significantly reduce the interior temperature of the house, and also significantly reduce the energy consumption costs associated with the house. The advertisement, said the applicant, conveyed more than the abstract capability of the paint, referring, as it did, to the benefits conferred by specific reference to the consumer’s own home, rather than tests and studies.
191 The respondent contended that these words referred to in [189] above, conveyed the representation that the results to be achieved by using Dulux heat reflect paint would vary depending upon the circumstances. Also, the respondent emphasised the absence of quantitative statements about the interior temperature reduction which may be achieved.
192 In my view, the class of consumers to whom this video advertisement is directed, would be the same as the class of consumers to whom the Dulux web page advertisements were directed. Accordingly, an ordinary or reasonable consumer would share the same attributes.
193 In my view, the overwhelming power of the video imagery described in [186]-[187] above, would convey to an ordinary or reasonable consumer the clear impression that the application of the Dulux heat reflect paint would both reduce the exterior surface temperature by up to 15°C and would significantly reduce the interior temperature of the relevant room.
194 The words relied upon by the respondent are not explicit enough to modify in the mind of an ordinary or reasonable consumer, the impression created by the power of the dynamic image sequence. In particular, the reference to darker colours is not explicit enough to convey to an ordinary or reasonable consumer that the dramatic benefits as portrayed in the vivid images can only be obtained by using darker colours, and that there may be no benefit if light colour paints are used.
195 Also, for the reasons which I have expressed before, the standard qualifying words associated with the ^ symbol, even if they have been brought to the attention of an ordinary or reasonable consumer viewing the video, would not have the effect of informing him or her that the application of the Dulux heat reflect paint can, but may not, deliver the reduction in the surface temperature of the exterior wall represented in the headline statements.
196 Accordingly, for these reasons and the reasons given in relation to the flyer and standee, I find that the exterior temperature reduction representation and the interior temperature reduction representation are conveyed by the Facebook page video.
197 Further, for the reasons which I have previously given, the heat reflect energy saving representation in the video advertisement is not, in my view, made during the course of the video advertisement.
198 Accordingly, I answer each of question 21 and 22 in the affirmative and question 23 in the negative.
Heat reflect print media advertisements
199 The applicant alleges that one or more of the following publications contained an advertisement which conveyed the exterior temperature reduction representation and the interior temperature reduction representation:
(a) (i) Better Homes & Gardens magazine - 7 December 2011;
(ii) Better Homes & Gardens magazine - March 2012;
(b) Handyman magazine;
(c) Australian House and Garden magazine;
(d) Building Products News magazine;
(e) West Australian newspaper - Habitat supplement;
(f) Warrnambool Standard newspaper;
(g) Weekend Gold Coast Bulletin newspaper;
(h) Gladstone Observer newspaper;
(i) Port Stephens Examiner newspaper; and
(j) Queensland Times newspaper.
200 The applicant explained that an advertisement of the kind impugned in this case, was sometimes referred to as an “advertorial” because its advertising content is presented in an editorial form.
201 The applicant pleaded as follows:
Heat Reflect Print Media Advertisements
66 From about October 2011 until March 2012, Dulux caused to be published print media advertisements in publications including Better Homes & Gardens Magazine, Handyman Magazine, Australian House & Garden, Building Products News Magazine, West Australian – Habitat Supplement, Warnambool Standard [sic], Weekend Gold Coast Bulletin, Gladstone Observer, Queensland Times and Port Stephens Examiner copies of which are at Annexure 8 to the Statement of Claim (Heat Reflect Print Media Advertisements).
67 The Heat Reflect Print Media Advertisement that appeared in the:
(a) Better Homes & Garden [sic] Magazine:
(i) published on 7 December 2011 included:
(A) the words “reflects radiant heat, lowering surface temperature by up to 15 degrees, keeping your home cooler”;
(B) an image of the Heat Reflect Tin.
(ii) published in March 2012 included:
(A) the headline “Keep cool in the summer months”;
(B) the words “Dulux Weathershield Heat Reflect paint uses revolutionary heat-reducing technology to lower surface temperature by up to 15 degrees*, allowing you to confidently choose from a new range of darker colour tones” and
(C) an image of the Heat Reflect Tin.
(b) Handyman Magazine included:
(i) the words “reflects heat to keep your home cooler”; and
(ii) the following image:
(c) Australian House & Garden included the words “keep your home cool with new Dulux Weathershield Heat Reflect”.
(d) Building Products News Magazine included the words:
(i) “it is said to reduce outside surface temperatures by up to 15 degrees Celsius; and
(ii) “product was developed to counter the need to paint exteriors in light colours to reduce the heat absorbed and to reduce colour fading”.
(e) West Australian – Habitat Supplement included the words:
(i) “sunscreen for the home”;
(ii) “can also reduce outside surface temperatures by up to 15 degrees Celsius leaving the home cooler during the day”.
(f) Warnambool Standard [sic] included the words:
(i) “reflects radiant heat helping to keep your home significantly cooler on the inside”; and
(ii) “up to 15 degrees cooler on the exterior surface”.
(g) Weekend Gold Coast Bulletin included the words:
(i) “go dark and keep cool”;
(ii) “reflects radiant heat helping to keep the home cooler inside”; and
(iii) “up to 15 degrees Celsius cooler on the exterior surface”.
(h) Gladstone Observer included the words:
(i) “New paint range helps your home keep its cool”;
(ii) “reflects radiant heat helping to keep your home significantly cooler on the inside”; and
(iii) “up to 15 degrees cooler on the exterior surface”.
(i) Port Stephens Examiner included the words:
(i) “reflects radiant heat helping to keep your home significantly cooler on the inside”; and
(iii) “up to 15 degrees cooler on the exterior surface”.
(j) Queensland Times included the words:
(i) “reflects radiant heat helping to keep your home significantly cooler on the inside”;
(ii) “up to 15 degrees cooler on the exterior surface”; and
(iii) “superb heat reducing performance”.
68 In the context of each of the Heat Reflect Print Media Advertisements as a whole, the words and images referred to in paragraphs 67(a) and 67(d) to 67(j) inclusive conveyed the Exterior Temperature Reduction Representation.
69 ...
70 In the context of each of the Heat Reflect Print Media Advertisements as a whole, the words and images referred to in paragraphs 67(a) to 67(c) inclusive and 67(e) to 67(j) inclusive conveyed the Interior Temperature Reduction Representation.
71 ...
202 The applicant submitted that the interior temperature reduction representation was conveyed each time the words used in the advertisement referred to a house being cooler as a result of using heat reflect paint, particularly, where the words included reference to the reduction of the exterior surface temperature by up to 15°C. It was also relevant, said the applicant, that the heat reflect media advertisements published in the Queensland Times, Warrnambool Standard, Gladstone Observer and Port Stephens Examiner newspapers use the words “significant” to describe the reduction of the interior temperature attendant upon the use of the heat reflect paint.
203 In my view, the advertisements of which the complaint is made, would have been directed to the readers of each of the publications in question. An ordinary or reasonable member of that class of consumers would not be a person who has decided to embark upon the expensive project of painting the walls of his or her home, and would not bring to the task of reading the advertisements the care which such a person would bring.
Better Homes & Gardens magazine – 7 December 2011
204 The advertisement comprises a two page spread in the Better Homes & Gardens magazine of 7 December 2011. The advertisement invites persons who may have been inspired by a project on Channel 7’s Better Homes & Gardens television programme to show their handicraft and win a prize. There is a picture of a tin of Dulux heat reflect paint in the bottom left-hand corner of the left-side page and adjacent to the picture is a panel containing text. That text contained the impugned word pleaded at para 67(a)(i)(A) of the statement of claim. There is an asterisk next to the word “cooler” which links to the usual qualifying text in smaller font below. The respondent referred to the asterisk and the accompanying text and contended that this circumstance would cause a reader to conclude that the representation conveyed was that the application of the heat reflect paint to a wall could reduce the exterior surface temperature of the wall by up to 15°C.
205 In my view, the words “keeping your home cooler” would be understood by an ordinary or reasonable consumer to represent that he or she would experience the tangible benefit of a reduced interior surface temperature in his or her home as a consequence of the reduction of the exterior surface temperature.
206 In my view, the qualification in the accompanying text in this case would be brought to the attention of an ordinary or reasonable consumer who read the advertisement. This is because the asterisk and the accompanying text are close in proximity being on the same page and only separated by a few lines of text and, secondly, that the print typeface of the qualifying words is not much smaller than that of the headline statement. However, as I have previously mentioned, the words of the qualifying statement would not in the mind of an ordinary or reasonable consumer qualify the headline words such as to convey the extent of the qualification contended for by the respondent, namely, that the words “up to” convey the meaning that there may be no reduction in exterior temperature at all.
207 I find that the words conveyed the exterior temperature reduction representation contended for by the applicant.
208 In my view, the admitted interior temperature reduction representation was conveyed by the words in question, but not the interior temperature reduction representation contended for by the applicant. This is because of the absence of any words or images which would convey the impression to an ordinary or reasonable consumer that the extent of the reduction of the interior temperature would be “significant”. As mentioned, the word “cooler” conveys the impression that the reduced exterior surface temperature will translate into a cooler interior temperature. But in the absence of vivid images or the use of the word “significant” an ordinary of reasonable consumer would not conclude that the extent of the reduction of the interior temperature would be significant.
209 I answer question 24 in the affirmative and question 25 in the negative.
Better Homes & Gardens magazine – March 2012
210 The next advertisement is on a page in the Better Homes & Gardens magazine published in March 2012. The advertisement contains a picture of a tin of Dulux heat reflect paint and adjacent thereto is the headline statement “Keep cool in the summer months”. Beneath that statement is a column of printed words which contains the words pleaded at para 67(a)(ii)(B) of the statement of claim. There is an asterisk next to the words “15 degrees” and the usual qualifying words at the bottom of that paragraph of printing in smaller but clearly legible print.
211 In my view, each of the exterior temperature reduction representation and the interior temperature reduction representation contended for by the applicant, is conveyed to an ordinary or reasonable reader of the advertisement. In particular, the use of the phrase “Keep your home cool this summer” implies that the application of the heat reflect paint will be effective in producing a home which is cool (namely, a house whose temperature has been significantly reduced to such an extent as to be classified as “cool”) both in respect of the reduction in the exterior surface temperature by up to 15°C and a reduced interior temperature. As to the asterisk and the related text, the observations which I made in relation to the first media advertisement apply.
212 Accordingly, in my view, both the exterior temperature reduction representation and the interior temperature reduction representation, contended for by the applicant, were made.
213 Therefore, the answer to each of question 27 and 28 is “Yes”.
Handyman magazine
214 The third impugned advertisement appeared in the Handyman magazine. This, contended the applicant, conveyed the interior temperature reduction representation.
215 This advertisement showed an image of the Dulux heat reflect paint tin with the 15 degree cooler blue arrow. There are orange/red heat arrows being reflected off the lid of the tin. The image is the same image as is depicted in para 67(b)(ii) of the statement of claim referred to in [201] above. The applicant relies upon the image and the words pleaded at para 67(b)(i) of the statement of claim. There are two dominant statements. The first is the headline statement “Reflects heat to keep your home cooler”. The second statement is “up to 15 degrees cooler” in the blue 15 degree cooler arrow.
216 The applicant did not contend that this advertisement conveyed the exterior temperature reduction representation. However, it contended that it conveyed the interior temperature reduction representation.
217 In my view, the same reasoning as applied in relation to the first of the Better Homes and Gardens magazine advertisement, applies in relation to this advertisement. Accordingly, I did not find that the interior temperature reduction representation was conveyed. Therefore, I answer question 30 in the negative.
Australian House and Garden magazine
218 The advertisement that appeared in the Australian House and Garden magazine comprised only the following words “Keep your home cool with new Dulux Weathershield Heat Reflect paint”.
219 In my view, the same reasoning as applied in relation to the second of the Better Homes & Gardens advertisements applies to this advertisement. I find that the interior temperature reduction representation was conveyed to an ordinary or reasonable reader of the advertisement. I, therefore, answer question 32 in the affirmative.
Building Products News magazine
220 The advertisement which appeared in the Building Products News magazine comprised a column of text occupying about a quarter of the surface area of the page. The respondent contended that the advertisement conveyed the exterior temperature reduction representation. The applicant relied upon the words pleaded at para 67(d)(i) and (ii) of the statement of claim.
221 The advertisement comprises a photograph of a wall painted dark blue and a headline statement - “Dulux’s new cool dark colours”. It refers to the Dulux heat reflect paint and then includes the additional words which put the words pleaded at para 67(d)(i) in context:
Using infrared reflective pigments to reflect radiant heat, it is said to reduce outside surface temperatures by up to 15°C; the reduction varies depending upon the colour chosen, the substrate and weather conditions. (Emphasis added.)
222 The respondent relied upon the presence of the words “up to 15°C” and the word “varies” in the sentence referred to above, to contend that the representation conveyed no more than that the application of the heat reflect paint to a wall could reduce the exterior surface temperature of the wall.
223 In my view, an ordinary or reasonable consumer reading the advertisement would not construe those words as having the effect contended for by the respondent. This is because, as previously stated, an ordinary or reasonable consumer would construe the words as stating that there would be a reduction in the exterior surface temperature of up to 15°C, but the extent of that reduction would depend upon the factors mentioned. In other words, the words would not be construed as indicating, as the respondent contended, that there may, in fact, be no reduction at all.
224 Accordingly, I find that the exterior temperature reduction representation was made.
225 I answer question 34 in the affirmative.
West Australian newspaper – “Habitat” supplement
226 The advertisement in the West Australian newspaper - “Habitat” supplement contains a photograph of a wall painted blue and the headline statement “Sunscreen for the home”. The advertisement occupies about a quarter of the surface area of the page. The applicant alleges that the advertisement made the exterior temperature reduction and interior temperature reduction representations. It relied upon the words pleaded at para 67(e)(i) and (ii) of the statement of claim.
227 The advertisement also, relevantly, states that the application of the heat reflect paint “can also reduce the outside temperature by up to 15°C leaving the home cooler during the day”. In opposing the applicant’s contentions, that the exterior temperature reduction representation was made, the respondent focused upon the use of the word “can”, as indicating that there was no representation that the consumer would receive a positive benefit in using the Dulux heat reflect paint.
228 The respondent’s submission should be accepted. In my view, an ordinary or reasonable consumer would not conclude that the advertisement conveyed the message that the paint would reduce the exterior surface temperature by up to 15°C, but rather that the heat reflect paint had the capability of achieving that result.
229 I reject the applicant’s contention that the interior temperature reduction representation was made. The applicant relied particularly on the words “leaving the home cooler during the day”.
230 In my view, an ordinary or reasonable consumer would understand the words “leaving the home cooler during the day” to be directly linked to the immediately preceding words. An ordinary or reasonable consumer would, therefore, understand that to the extent that the heat reflect paint may reduce the exterior surface temperature, that would leave the home cooler. An ordinary or reasonable consumer would, therefore, not construe the advertisement as stating that there would be a significant reduction in the interior temperature of the home, if the heat reflect paint was used.
231 I, therefore, answer each of question 35 and 36 in the negative.
Warrnambool Standard newspaper
232 The Warrnambool Standard newspaper advertisement was published in December 2011.
233 The applicant alleged that the advertisement made both the exterior temperature reduction and interior temperature reduction representations. The applicant relied upon the words pleaded at para 67(f) of the statement of claim.
234 The advertisement referred to the Dulux heat reflect paint as a new product and contained the following sentence:
The new product reflects radiant heat, helping to keep your home significantly cooler inside and up to 15 degrees cooler on the exterior surface.
235 I observe that there was no qualification upon the statement, and that the statement used the words “to keep your home significantly cooler”.
236 The respondent relied upon the presence of the word “helping” in that sentence. The respondent also relied upon the fact that the advertisement contained the words “Generally darker colours absorb more heat from the sun” as constituting a qualifying statement as indicating to the reader that the results obtained from applying the Dulux heat reflect paint would vary. However, in my view, the words relied on by the respondent would not suggest to an ordinary or reasonable consumer reading the advertisement that there may be no benefit from the application of the heat reflect paint. The word “helping” suggests that the application of the heat reflect paint will have a beneficial consequence, and there is no suggestion that the application of light rather than dark colours would or could preclude the consumer from obtaining the represented benefits.
237 In my view, the presence of those words would not in the mind of an ordinary or reasonable consumer undermine the representation that the contribution made by the application of Dulux heat reflect paint would, and not just could, result in the exterior surface of the wall being up to 15°C cooler and the inside of the reader’s home being kept “significantly cooler”. An ordinary or reasonable consumer would give the words “significantly cooler” in the text of the advertisement their full effect.
238 Accordingly, in my view, the exterior temperature reduction representation and the interior temperature reduction representation are made.
Gladstone Observer, Port Stephens Examiner and Queensland Times newspapers
239 The same observations and findings that I have made in relation to the advertisement in the Warrnambool Standard apply to the advertisement in each of the Gladstone Observer, the Port Stephens Examiner and the Queensland Times newspapers which uses the same language as that used in the Warrnambool Standard.
240 I, therefore, answer each of question 38 and 39 in the affirmative.
Weekend West Coast Bulletin newspaper
241 The advertisement in the Weekend West Coast Bulletin newspaper contained the words pleaded at para 67(g) of the statement of claim.
242 The applicant contended that the words conveyed each of the exterior temperature reduction representation and the interior temperature reduction representation.
243 The language in the Weekend West Coast Bulletin advertisement is different to that in the Warrnambool Standard in one relevant respect. The advertisement omits the word “significantly” in the phrase “helping to keep the home cooler”. The respondent submitted that the presence of the word “helping” in that phrase, and the words, “People may be wary of going dark as these shades can absorb more heat from the sun”, would convey to the reader that the application of the heat reflect paint may not yield the results represented later in the advertisement. I observe that the second set of words relied on by the respondent are immediately followed by the following words:
Dulux has combated these issues with the release of its new Weathershield Heat Reflect range.
244 As previously mentioned, the words relied on by the respondent do not state in sufficiently explicit terms that a consumer using the Dulux heat reflect paint may not obtain the benefits represented. An ordinary or reasonable consumer would not construe the words regarding the colours as making clear that the represented benefits were confined to dark colours, and that it may be that no benefit is derived by using light coloured paint.
245 In my view, an ordinary or reasonable consumer would construe the advertisement as stating that the application of the heat reflect paint would lead to the reduction in the exterior surface temperature by up to 15°C.
246 Accordingly, I find that the exterior temperature reduction representation is made. However, in the absence of the use of the word “significantly”, I do not find that the interior temperature reduction representation was made. My reasons for coming to that view have been expressed at [208] above.
247 I answer question 42 in the affirmative and question 43 in the negative.
Heat reflect press releases
248 The applicant contended that the respondent made the impugned representations in the press releases which it published. There were two such press releases. In relation to those press releases the applicant pleaded as follows:
Heat Reflect Press Releases
72 From about October 2011, Dulux published press releases…(Heat Reflect Press Releases).
73 The Heat Reflect Press Releases included the words:
(a) “reduces outside surface temperatures by up to 15 degrees Celsius”;
(b) “reflects radiant heat, helping to keep your home significantly cooler inside and up to 15 degrees Celsius cooler on the exterior surface”; and
(c) “This in turn will help keep your home cooler on the inside; and may assist in reducing the need for power hungry cooling devices and save on energy costs”.
74 In the context of the Heat Reflect Press Releases as a whole, the words and images referred to in paragraphs 73(a) and 73(b) conveyed the Exterior Temperatures Reduction Representation.
75 …
76 In the context of the Heat Reflect Press Releases as a whole, including the words at paragraph 73(a), the words and images referred to in paragraphs 73(b) and 73(c) conveyed the Interior Temperature Reduction Representation.
77 ...
78 In the context of the Heat Reflect Press Releases as a whole, including the words at paragraphs 73(a) and 73(b), the words referred to in paragraph 73(c) conveyed the Heat Reflect Energy Saving Representation.
79 ...
249 The applicant submitted that regard must be had to the purpose and use of the press releases. The applicant said it may be inferred from the nature of each document itself that it was intended to be read primarily by journalists, in the hope that the journalists would publish or broadcast the information in the press release, or arrange an interview with a Dulux representative.
250 I accept the applicant’s submission and find that journalists were the class of consumers to whom the statements were addressed. I also find that an ordinary or reasonable member of that class of consumers would take some care in reading the press release. This is because a journalist would be reading the press release in a professional capacity, in the course of determining whether to write an article about the heat reflect paint, or take or not take further action in relation to the press release.
251 The first press release is headed “Sunscreen for your family, sunscreen for your home”, and comprises a one page document of which a photograph of an exterior wall of a house painted in a dark grey colour, occupies about half of the page.
252 This press release contained the following relevant statements:
Using infrared reflective pigments to reflect radiant heat, Dulux Weathershield Heat Reflect reduces outside surface temperatures by up to 15°C^.
This in turn will help keep your home cooler on the inside; and may assist in reducing the need for power hungry cooling devices and save on energy costs.
253 The usual qualifying words associated with the ^ symbol appeared in small print at the end of the press release.
254 The applicant relied upon the words of the press release pleaded at para 73 of the statement of claim, to contend that the press release conveyed the exterior and interior temperature reduction representations and the heat reflect energy saving representation.
255 The applicant submitted that the expressed connection between the quantified “up to 15°C” surface temperature reduction statement and the cooler home and the energy cost savings statements conveyed the impression to a reader that the interior temperature of his or her home would be significantly reduced. The applicant drew particular attention to the use of the words “will help keep your home cooler on the inside”. The respondent drew attention to the absence of quantitative statements about the interior temperature reduction that may be achieved and the use of the qualifying language by reference to the ^ symbol and the use of the word “may” in the phrase “may assist” in relation to the saving on energy costs.
256 In my view, an ordinary or reasonable consumer reading the press release would understand the press release to state that by using Dulux heat reflect paint, rather than standard paint, to paint an exterior walls of a house, the exterior surface temperature of the walls would be reduced by up to 15°C and that the reduction would be reflected in there being a cooler room. An ordinary or reasonable consumer would note the ^ symbol and have regard to the associated qualifying text, but would not, in my view, for the reasons given previously, understand the associated text to convey the message that there may in fact be no exterior surface temperature reduction at all.
257 However, an ordinary or reasonable consumer, being, in this case, a journalist, would not understand the press release to be stating that the interior temperature reduction would be “significant”. This is because there are no dramatic images which strongly influence the mind of the consumer, nor is the word “significantly” used, and the careful professional reader would appreciate that the extent of any interior temperature reduction would be related to the extent of the exterior temperature reduction which may vary up to 15°C.
258 Accordingly, in my view, the exterior temperature reduction representation, but not the interior temperature reduction representation, was conveyed to an ordinary or reasonable consumer.
259 In relation to the heat reflect energy saving representation, alleged by the applicant, for the reasons which I have previously given, I do not find that the press release entitled “Sunscreen for your family, sunscreen for your home” conveyed the heat reflect energy saving representation.
260 It follows that I answer question 44 in the affirmative and each of question 45 and 46 in the negative.
261 The second press release is headed “Embrace a darker shade and keep cooler this summer”. The press release contains a column of text and adjacent to that text, occupying about a third of the surface area of the press release, was a picture of a house painted in a combination of dark and light colours.
The applicant relied upon the words pleaded at para 73 of the statement of claim and contended that the press release contained both the exterior temperature reduction representation and the interior temperature reduction representation.
262 That press release relevantly contained the following statement:
Dulux Weathershield Heat Reflect reflects radiant heat helping to keep your home significantly cooler inside and up to 15°C cooler on the exterior surface.
263 There was the ^ symbol next to “15°C” and the usual qualifying words at the bottom of the press release.
264 The respondent relied upon the ^ symbol and attendant qualifying words in opposition to the applicant’s contentions. The respondent also submitted that the use of the word “helping” indicated that the size of any interior temperature reduction would vary, and may or may not be significant in any given case. The respondent also referred to the title of the press release which referred to darker colours.
265 In my view, an ordinary or reasonable consumer would construe this press release as conveying the representation that painting a house with Dulux heat reflect paint would lead to a significantly cooler interior temperature. As previously mentioned, the word “helping” does no more than suggest that the use of the heat reflect paint would contribute to bringing about the represented benefit and the press release does not make it sufficiently clear that the benefits represented may not be achieved at all, so that no benefit may accrue by using Dulux paint. Further, the press release states expressly that the home would be “significantly cooler inside”. In my view, an ordinary or reasonable consumer, even one taking some care, would understand the representation to be made in those terms.
266 In my view, each of the exterior and interior temperature reduction representations is conveyed by this press release.
267 Accordingly, I answer each of question 47 and 48 in the affirmative.
Heat reflect television commercials
268 The applicant also contended that television commercials distributed and caused to be broadcast by the respondent contained the exterior and the interior temperature reduction representations. The applicant pleaded as follows:
80 From about October 2011, Dulux caused to be broadcast throughout Australia television commercials…(Heat Reflect Television Commercials) on Channel Seven, Channel Nine and Channel Ten.
81 The Heat Reflect Television Commercials included the words: “lowers the surface temperature by up to 15 degrees, keeping the insider cooler”.
82 In the context of each of the Heat Reflect Television Commercials as a whole, the words “lowers the surface temperature by up to 15 degrees, keeping the inside cooler” conveyed:
(a) the Exterior Temperature Reduction Representation…; and
(b) the Interior Temperature Reduction Representation…
269 The commercial shows a person applying Dulux heat reflect paint to an exterior sun-facing wall at a surf lifesaving club. Whilst applying the heat reflect paint, the person says that the heat reflect paint “lowers the surface temperature by up to 15 degrees keeping the inside cooler”.
270 Whilst the words “keeping the inside cooler” are being spoken, the following qualifying words appear briefly on the screen:
[S]urface temperature reduction varies depending on the colour chosen, the substrate and weather conditions. See can for details.
271 The respondent relies upon the presence of the qualifying words to contend that the television commercial conveyed the admitted exterior temperature reduction representation, and not, as the applicant would have it, the exterior temperature reduction representation.
272 The applicant contended that the qualifying words appeared in such small print and for so short a period, that they would be ineffective in qualifying the representation conveyed by the actor speaking to the camera. The applicant relied on the decision of Lee J in Australian Competition and Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326 in support of this proposition.
273 In my view, the television commercials are directed to members of the public who may be watching television. An ordinary or reasonable member of this class of consumers would not, in my view, be particularly concerned to reflect upon the meaning of the words spoken and would be left with the message conveyed by first impressions gleaned from the images and the spoken words.
274 The qualifying words flashed on to the screen are in sufficiently large font to be noticeable on the screen. An ordinary or reasonable consumer would, therefore, realise that there was some qualification expressed in respect of the statement made by the person who was applying the paint. However, the words are not on the screen long enough for a viewer to read and absorb the content of the words. Accordingly, in my view, the presence of the words would not be effective in conveying the full content of the qualification expressed therein, to an ordinary or reasonable consumer. In any event, as I have previously observed, the words of qualification do not go so far as to suggest that there may be no reduction in the exterior surface temperature at all. Rather, an ordinary or reasonable consumer would construe the qualification to mean that the extent of the reduction referred to in the headline statement would vary depending upon circumstances, but that there would still be a reduction.
275 Accordingly, I find that the television commercials conveyed the exterior temperature reduction representation.
276 The applicant submitted that an ordinary or reasonable consumer viewing the television commercial would expect a significant degree of cooling, one that bore a relationship to the “up to 15°C” exterior surface temperature reduction.
277 The respondent contended that the words did not contain any quantitative statements about the interior temperature reduction which may be achieved and even if some quantitative element should be inferred, there is no reasonable basis for it being “significant”.
278 The words of the speaker would convey to an ordinary or reasonable consumer that there was a direct relationship between the lower surface temperature and the inside being kept cooler. However, the television commercial does not contain the vivid images, nor any other factor, which would cause an ordinary or reasonable consumer viewing the commercial to conclude that the inside would be kept significantly cooler.
279 I, therefore, do not find that the interior temperature reduction representation was conveyed by the television commercials.
280 Accordingly, I answer question 53 in the affirmative, and question 54 in the negative.
Heat reflect Better Homes & Gardens segment
281 The applicant also contended that the respondent had caused the making of the exterior temperature reduction representation during the course of a Better Homes & Gardens television programme on 9 March 2012. The applicant pleaded as follows:
83 On 9 March 2012, Dulux caused a promotional segment to be included in the television show Better Homes & Gardens…(Heat Reflect Better Homes & Gardens Segment), which was broadcast on Channel 7 throughout Australia.
84 The Heat Reflect Better Homes & Gardens Segment included the following words in relation to Heat Reflect Paint: “it cuts outside surface temperature by up to 15 degrees”.
85 In the context of the Heat Reflect Better Homes & Gardens Segment as a whole, the words “it cuts outside surface temperatures by up to 15 degrees” conveyed the Exterior Temperature Reduction Representation…
282 The Better Homes & Gardens segment portrays a television presenter engaged in renovating the outside of a house. Whilst the television presenter is painting the outside of the house’s wall the television presenter refers to the Dulux heat reflect paint as a new product which “cuts outside surface temperatures by up to 15 degrees”.
283 In my view, an ordinary or reasonable consumer would have the same attributes as the viewer of the television commercials referred to in [273] above.
284 The applicant said that the spoken words do not express any uncertainty, for example, by saying “could cut” or “might cut” and, in the context of the segment as a whole, conveyed the exterior temperature reduction representation. The respondent said that the element of uncertainty is to be found in the use of the words “up to”.
285 I accept the applicant’s submission that the relevant statement is not qualified. In my view, an ordinary or reasonable consumer viewing the segment would understand the representation to convey that the application of the heat reflect paint would have the result of cutting the exterior surface temperature of the wall by up to 15°C. The respondent relied only upon the use of the words “up to” in support of its contention. However, those words would in the mind of an ordinary or reasonable consumer, convey no more than that the extent of the temperature would vary, and would not convey the message that there may in fact be no exterior surface temperature reduction.
286 I, accordingly, find that the exterior temperature reduction representation was made.
287 I answer question 55 in the affirmative.
Heat reflect video
288 The applicant contended that in the course of a YouTube video production, the respondent made the exterior temperature reduction representation, the interior temperature reduction representation and the heat reflect energy saving representation.
289 The applicant pleaded as follows:
Heat Reflect Video on YouTube
86 From about October 2011 until at least August 2012, Dulux caused the Heat Reflect Video to be accessible on the YouTube website.
87 The Heat Reflect YouTube Video is the same video referred to in paragraph 59(c) above which conveyed the:
(a) Exterior Temperature Reduction Representation or alternatively, the Admitted Exterior Temperature Reduction Representation;
(b) Interior Temperature Reduction Representation or alternatively, the Admitted Interior Temperature Reduction Representation; and
(c) Heat Reflect Energy Saving Representation or alternatively, the Admitted Heat Reflect Saving Representation.
290 The YouTube video is the same video production as the video production on the Dulux Facebook page. It follows that the same findings made in relation to the video at the Dulux Facebook page apply mutatis mutandis to this claim.
291 I, therefore, answer each of question 56 and 57 in the affirmative, but question 58 in the negative.
Heat reflect Conergy promotion video
292 The Conergy promotion video is a joint promotion between Dulux and Conergy Australia Pty Ltd, a solar energy company. The video commences by showing the room comparison image which is also part of the flyer and standee and contains the following statement: “help save energy costs by using Dulux Weathershield Heat Reflect”.
293 The applicant pleaded as follows:
Heat Reflect Conergy Promotion Video
88 In February and March 2012, Dulux and the solar energy company, Conergy Australia Pty Ltd, conducted a joint promotion (Conergy Promotion).
89 In February and March 2012, Dulux caused the following words to be included in a video created for the purpose of the Conergy Promotion…(Heat Reflect Conergy Promotion Video): “help save energy costs by using Dulux Heat Reflect”.
90 The Heat Reflect Conergy Promotion Video was broadcast on Channel 7 in Townsville approximately 105 times between 19 February and 17 March 2012.
91 In the context of the Heat Reflect Conergy Promotion Video as a whole, the words “help save energy costs by using Dulux Heat Reflect” conveyed the Heat Reflect Energy Saving Representation…
294 In issue between the parties is whether the heat reflect Conergy promotion video conveyed a representation that the application of the Dulux heat reflect paint to the exterior walls of a house “will significantly reduce the energy costs” associated with that house.
295 The applicant submitted that the statement “help save energy costs by using Dulux Weathershield Heat Reflect” which is made in the Conergy promotion video, conveys the impression that energy cost savings are more than a chance or possibility if heat reflect paint is applied.
296 The respondent submitted that the contentious statement suggests merely a possible reduction in energy costs by reason of the word “help”. Moreover, says the respondent, the words “Heat Reflect” indicates that any savings in energy costs would relate to a reduction in cooling energy costs, not energy costs more broadly.
297 The video advertisement is directed to members of the public who are watching television, and an ordinary or reasonable member of that class of consumers would be possessed of the same attributes as those described in [273] above.
298 In my view, an ordinary or reasonable consumer would understand the message conveyed to be that the application of the heat reflect paint to the walls of a house would have the effect of reducing the interior temperature of the house to such an extent as to save on energy costs. In my view, the use of the word “help” introducing the statement would not, in the mind of an ordinary or reasonable consumer, convey, as the respondent contended, a representation that there is a possible reduction in energy costs. The message conveyed by the statement is not that the application of the heat reflect paint may assist or may reduce, but that it will positively contribute to the saving of energy costs by reducing the extent of air-conditioning equipment. However, in my view, there is no aspect of the advertisement which would cause an ordinary or reasonable consumer to understand the message conveyed to be that the application of the heat reflect paint will “significantly” reduce those energy costs. In my view, therefore, the heat reflect energy saving representation was not conveyed.
299 I, therefore, answer question 59 in the negative.
300 I will hear the parties on costs.
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I certify that the preceding three hundred (300) |
Associate:
