FEDERAL COURT OF AUSTRALIA

Procter & Gamble Australia Pty Limited v Energizer Pty Limited

[2011] FCA 1347

Citation:		Procter & Gamble Australia Pty Limited v Energizer Pty Limited [2011] FCA 1347
Parties:		PROCTER & GAMBLE AUSTRALIA PTY LIMITED ACN 008 396 245 v ENERGIZER AUSTRALIA PTY LIMITED ACN 003 539 026
File number:		NSD 121 of 2011
Judge:		BENNETT J
Date of judgment:		29 November 2011
Catchwords:		TRADE PRACTICES – respondent admits making representation in promotional materials that respondent’s products have a hydrating effect on the skin of the user during shaving process – whether representation contravenes ss 18(1) and 29(1)(g) of Australian Consumer Law – whether hydrating effect is greater than de minimis TRADE PRACTICES – whether respondent made representation in promotional materials that respondent’s products have a hydrating effect on the skin of the user after shaving process – relevance of nature of product – relevance of absence of evidence of consumer complaint or consumer misunderstanding TRADE PRACTICES – whether respondent made representation in promotional materials that respondent’s products provide best shave for user in comparison to other products – whether respondent’s claims are mere puffery
Legislation:		Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law) ss 4, 18(1), 29(1)(g)
Cases cited:		ACCC v Dukemaster Pty Ltd [2009] FCA 682 cited ACCC v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 cited Annand & Thompson Pty Ltd v Trade Practices Commission [1979] 25 ALR 91 cited Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 27 FCR 149 cited Cadbury Schweppes v Darrell Lea (No 4) (2006) 229 ALR 136 cited Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 applied Jainran Pty Ltd v Boyana [2008] NSWSC 468 applied Kulikovsky v Police [2010] SASC 58 cited Lymquartz v 2 Elizabeth Bay Road [2007] NSWSC 457 cited Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 followed Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 cited Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 cited
Date of hearing:	5-9, 14-16 and 23 September 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	317
Counsel for the Applicant:	Mr S Robb QC with Mr T Breakspear
Solicitor for the Applicant:	Colin Biggers & Paisley
Counsel for the Respondent:	Mr J Hennessy
Solicitor for the Respondent:	Gilbert + Tobin

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 121 of 2011

BETWEEN:	PROCTER & GAMBLE AUSTRALIA PTY LIMITED (ACN 008 396 245) Applicant
AND:	ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	29 November 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.    The parties are to submit proposed agreed orders by 6 December 2011.

2.    If the parties are unable to agree proposed orders, each party should submit proposed orders, including orders as to costs, by 9 December 2011. If desired, the proposed orders may be accompanied by short written submissions of no more than 2 pages, in normal font and spacing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 121 of 2011

BETWEEN:	PROCTER & GAMBLE AUSTRALIA PTY LIMITED (ACN 008 396 245) Applicant
AND:	ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) Respondent

JUDGE:	BENNETT J
DATE:	29 November 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1    Since 9 January 2011, the respondent (Energizer) has promoted and sold in Australia the five-bladed Schick Hydro 5 razor (Hydro 5), the three-bladed Schick Hydro 3 razor (Hydro 3), replacement cartridges for the Hydro 5 (Hydro 5 Replacement Cartridges) and replacement cartridges for the Hydro 3 (Hydro 3 Replacement Cartridges) (collectively, Hydro Products).

2    Through its Gillette brand, the applicant (P&G) is a competitor of Energizer in the Australian men’s wet razor market. Gillette’s razor products include the five-bladed Mach 5 and the three-bladed Mach 3.

3    The parties to these proceedings are both Australian companies. However, in the course of these reasons, where I use P&G and Energizer, this may, where applicable, refer to the parent company or an associated entity of the parties.

4    These proceedings concern material used by Energizer in the promotion and sale of the Hydro Products, which includes:

    the packaging of the Hydro 5 (the Hydro 5 Packaging), Hydro 3 (the Hydro 3 Packaging), Hydro 5 Replacement Cartridges (the Hydro 5 Replacement Cartridges Packaging) and Hydro 3 Replacement Cartridges (the Hydro 3 Replacement Cartridges Packaging) (collectively, the Packaging);

    the display of the Hydro Products in supermarkets (the Display);

    an advertisement published in the Daily Telegraph newspaper on or about 10 January 2011 (the Daily Telegraph Advertisement);

    two advertisements published in the Zoo Weekly magazine on or about 27 and 28 February 2011 (the First Zoo Weekly Advertisement and the Second Zoo Weekly Advertisement respectively, together the Zoo Weekly Advertisements);

    an online advertisement available at Energizer’s www.schick.com.au website (the Schick Online Advertisement);

    an online advertisement available at Energizer’s www.schickhydro.com.au website (the Hydro Online Advertisement);

    material on a “Schick for Men Australia” Facebook page (the Facebook Page); and

    advertisements broadcast on Australian television (the 30 Second Television Advertisement, the First 15 Second Television Advertisement and the Second 15 Second Television Advertisement, together the Television Advertisements);

    material on the YouTube page www.youtube.com/SchickHydro (the YouTube Page);

(collectively, Hydro Materials).

5    It is not in dispute that the Hydro Materials are either publicly accessible, have been broadcast on television or have been published in various print media.

6    P&G contends that Energizer has contravened ss 18(1) and 29(1)(g) of the Australian Consumer Law (Cth) (ACL) by making representations in the Hydro Materials that:

    the use of certain or all of the Hydro Products will have a moisturising/hydrating effect on the user’s skin during the shaving process (the Transient Hydration Representation); and

    the use of certain or all of the Hydro Products will have a moisturising/hydrating effect on the user’s skin beyond the shaving process (the Long-Lasting Hydration Representation);

    the Hydro 5 and Hydro 5 Replacement Cartridges (collectively, the Hydro 5 Products) provide the best shave for the skin of the user in comparison to all other wet shave razors (the Best Shave Representation).

7    P&G no longer relies on an alleged representation made by Energizer to the effect that the “hydrating gel reservoir” component of the Hydro 5 Products has different properties and causes different effects during the shaving process than does the lubricating gel reservoir component of the Hydro 3 and Hydro 3 Replacement Cartridges (collectively, the Hydro 3 Products).

8    There are three issues before the Court.

9    First, does the use of the Hydro Products have a moisturising/hydrating effect on the user’s skin during the shaving process? Energizer admits that the Hydro Materials make the Transient Hydration Representation but denies that this representation is false, misleading, likely to mislead, deceptive or likely to deceive. Accordingly, the parties agree that if the answer to this question is in the negative, Energizer will have contravened the ACL by making the Transient Hydration Representation.

10    Secondly, do the Hydro Materials make the Long-Lasting Hydration Representation? Energizer admits that the Hydro Products are not capable of having a moisturising/hydrating effect beyond the shaving process but denies that the Hydro Materials make the Long-Lasting Hydration Representation. Accordingly, the parties agree that if the Court finds the Long-Lasting Hydration Representation to have been made, Energizer will have contravened the ACL.

11    Thirdly, are the claims relied upon by P&G in alleging that Energizer has made the Best Shave Representation mere puffery? By orders made 21 July 2011, the Court limited its consideration of the Best Shave Representation to this question for the purposes of the current hearing. The parties agree that if the answer to this question is in the affirmative, Energizer will not have made the Best Shave Representation and will not have contravened the ACL. However, if the answer to this question is in the negative, Energizer will have made the Best Shave Representation and a further hearing will be necessary to determine whether the making of the Best Shave Representation contravenes the ACL.

12    The parties conducted the case on the basis that, as the hydration of the skin results in extra moisture on the skin, there was no distinction to be drawn between hydration and moisturisation for the determination of these issues. However, the parties drew a distinction between the Hydro Products and products known to have a longer term moisturising effect, such as cosmetic moisturisers.

13    It is necessary at this point to explain the structure of these reasons. At the outset, I outline the relevant legal principles, the qualifications of the expert witnesses and the parties’ characterisation of the male shaving process. I then turn to consider the evidence on the hydrating effect of the Hydro Products. This evidence is relevant to the Transient Hydration Representation. This is followed by an examination of the characteristics of the reasonable consumer. Having done this, I then make findings on the Transient Hydration Representation. At this point, I turn to consider the Long-Lasting Hydration Representation and the Best Shave Representation. First, I deal with some general submissions on the appropriate approach to be taken to these representations. I then consider each of the Hydro Materials individually. I do so by outlining the contents of the Hydro Material under consideration and then considering whether the Long-Lasting Hydration Representation is made and, where relevant, whether the Best Shave Representation is made.

14    The index of these reasons is as follows:

LEGAL PRINCIPLES	[15]
EXPERT WITNESSES	[21]
Dr Rawlings	[23]
Professor Lavker	[29]
Professor Humbert	[30]
THE SHAVING PROCESS	[31]
EVIDENCE ON THE TRANSIENT HYDRATION REPRESENTATION	[34]
Background	[35]
Skin hydration, moisturisation and skin lubrication	[35]
Relevant matters ultimately not in issue	[42]
Issues with experimental data	[43]
The measuring instruments	[44]
The characteristics of Hydro Polyox	[53]
The timing of measurements	[59]
The experimental results	[73]
The P&G tests	[73]
The Energizer tests	[83]
Conclusion	[91]
THE REASONABLE CONSUMER	[92]
THE TRANSIENT HYDRATION REPRESENTATION	[97]
The pleadings	[101]
Is the hydrating/moisturising effect greater than de minimis?	[106]
Conclusion	[116]
PRELIMINARY ISSUES CONCERNING THE LONG-LASTING HYDRATION REPRESENTATION AND THE BEST SHAVE REPRESENTATION	[120]
Individual consideration of the Hydro Materials	[120]
Approach to consideration of the Long-Lasting Hydration Representation	[125]
Approach to consideration of the Best Shave Representation	[135]
CONSIDERATION OF THE LONG-LASTING HYDRATION REPRESENTATION AND THE BEST SHAVE REPRESENTATION	[141]
The Packaging	[142]
The Long-Lasting Hydration Representation	[152]
P&G submissions	[152]
Energizer submissions	[153]
Consideration	[155]
The Best Shave Representation	[163]
The Display	[177]
The Long-Lasting Hydration Representation	[178]
P&G submissions	[178]
Energizer submissions	[181]
Consideration	[183]
The Best Shave Representation	[189]
The Daily Telegraph Advertisement	[191]
The Long-Lasting Hydration Representation	[192]
P&G submissions	[192]
Energizer submissions	[194]
Consideration	[196]
The Best Shave Representation	[199]
The Zoo Weekly Advertisements	[201]
The Long-Lasting Hydration Representation	[209]
P&G submissions	[209]
Energizer submissions	[214]
Consideration	[216]
The Best Shave Representation	[224]
The Schick Online Advertisement	[227]
The Long-Lasting Hydration Representation	[238]
P&G submissions	[238]
Energizer submissions	[239]
Consideration	[242]
The Best Shave Representation	[251]
The submissions	[253]
Consideration	[256]
The Hydro Online Advertisement	[259]
The Long-Lasting Hydration Representation	[264]
P&G submissions	[264]
Energizer submissions	[265]
Consideration	[267]
The Best Shave Representation	[273]
The Facebook Page	[275]
The Long-Lasting Hydration Representation	[278]
P&G submissions	[278]
Energizer submissions	[280]
Consideration	[281]
The Best Shave Representation	[287]
The Television Advertisements	[290]
The Long-Lasting Hydration Representation	[294]
P&G submissions	[294]
Energizer submissions	[297]
Consideration	[300]
The Best Shave Representation	[305]
The YouTube Page	[308]
P&G submissions	[309]
Energizer submissions	[310]
Consideration	[311]
CONCLUSION	[315]

Legal Principles

15    Section 18(1) of the ACL provides that ‘a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.

16    Section 29(1)(g) of the ACL provides that:

A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits.

17    There is no dispute that although s 29(1) uses the term “false or misleading” rather than “misleading or deceptive” there is no material difference between these terms (ACCC v Dukemaster Pty Ltd [2009] FCA 682 at [14]).

18    The legal principles are not in dispute between the parties. However, it is worth briefly mentioning some of those principles:

    In order to be misleading, the conduct in question must contain or convey a misrepresentation. Whether or not particular conduct is misleading is a question of fact to be determined having regard to the context in which the conduct takes place and the surrounding factual circumstances (Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199).

    The conduct of the respondent must be viewed as a whole taking into account all words and acts (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ).

    In the case of advertising in relation to a mass-marketed product for general use, the question is whether the misconceptions or deceptions are likely to be suffered by an ordinary or reasonable member of the class of prospective purchasers (Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [103] and [105]).

    There need only be a real or not remote chance that the advertisement be understood to have a particular meaning, regardless of whether it is less or more than 50% (Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 27 FCR 149 at 268, applying Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367).

    It is not essential to prove that consumers have actually been misled but the absence of any such evidence can, in appropriate circumstances, be regarded as ‘very material’ and ‘of some importance’ (Cadbury Schweppes v Darrell Lea (No 4) (2006) 229 ALR 136 at [80]).

    Whether a representation is a puff depends on the particular facts considered in light of the ordinary incidents and character of commercial behaviour (ACCC v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 at [122]).

19    In addition, there is no dispute as to the application of s 4 of the ACL to these proceedings. That section provides:

(1)    If:

(a)    a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

(b)    the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of this Schedule, to be misleading.

(2)    For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

(a)    a party to the proceeding; or

(b)    any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

(3)    To avoid doubt, subsection (2) does not:

(a)    have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

(b)    have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

(4)    Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:

(a)    a misleading representation; or

(b)    a representation that is misleading in a material particular; or

(c)    conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

20    Section 4(1) of the ACL states that a representation with respect to any future matter is misleading if there are no reasonable grounds for making the representation. Section 4(2) states that, unless evidence is adduced to the contrary, the person making the representation is taken not to have had reasonable grounds for making the representation. P&G accepts that:

    Energizer has, in these proceedings, adduced ‘evidence… to the contrary’ for the purpose of s 4(2) of the ACL.

    Accordingly, Energizer had reasonable grounds for making the Transient Hydration Representation.

    P&G has the onus of establishing that Energizer has contravened ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation.

    If the Court is unable to decide, based on the evidence, whether the Transient Hydration Representation is false or misleading, Energizer will not have contravened the ACL.

EXPERT WITNESSES

21    P&G adduced independent evidence from Dr Anthony Rawlings, while Energizer adduced independent evidence from Professors Lavker and Humbert. Dr Rawlings and Professor Lavker met and submitted a joint report. They gave concurrent oral evidence. Professor Humbert was cross-examined by video/audio from France.

22    There is no challenge to the expertise of these witnesses. However, Energizer disputes Dr Rawlings’ status as an independent expert.

Dr Rawlings

23    Dr Rawlings is an independent consultant in the health and beauty industry. He has more than 25 years of experience in research and development, including 22 years of research in skin biology at several senior management levels at companies such as Unilever Plc and Cussons International Ltd. Since 2002, Dr Rawlings has consulted for many skincare companies and ingredient suppliers on all aspects of skin biology, including skin moisturisation and its testing. In May 2011, he was appointed as Visiting Professor to the Department of Pharmaceutics in the School of Pharmacology at the University of London. Dr Rawlings is the author or co-author of more than 170 papers, book chapters and abstracts in the areas of skin and good science.

24    Dr Rawlings was cross-examined on his relationship with P&G. The following points emerged from the evidence:

    Dr Rawlings has been providing consulting services to P&G for approximately eight years, a fact that he did not disclose in his report. Dr Rawlings explained his failure to disclose his consultancy for P&G on the basis that he had not consulted for Gillette and had never given any opinions to P&G on shaving or use of shaving preparations.

    Dr Rawlings has given evidence for P&G in proceedings in the United States, a fact he disclosed in his statement.

    Dr Rawlings’ name and comments have been used in the promotion of other P&G products.

    P&G has sponsored certain research undertaken by Dr Rawlings.

25    Energizer says that, as a consequence of the relationship identified above, Dr Rawlings sought to advance P&G’s case in an unmoderated fashion, such that he refused to yield to even the most obvious of subjects and raised speculative factors without making any proper attempt to substantiate them. Energizer submits that Dr Rawlings was not a truly independent expert and that his evidence should be accorded less weight than the Court would otherwise be inclined to give it.

26    Energizer relies on the contents of Practice Note CM 7, which states, under the header “General Duty to the Court”, that:

1.1    An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.

1.2    An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.

1.3    An expert witness’s paramount duty is to the Court and not to the person retaining the expert.

27    Energizer also relies on authorities which suggest that an expert’s lack of independence (Kulikovsky v Police [2010] SASC 58 per Gray J at [36]-[39]) and failure to disclose a pre-existing relationship with the party for whom the expert is giving evidence (Lymquartz v 2 Elizabeth Bay Road [2007] NSWSC 457 at [163]) should affect the weight to be given to the expert’s evidence.

28    I accept that Dr Rawlings has had a consulting relationship of long standing with P&G. That reflects the connection between his expertise and P&G’s products. I did form the view that Dr Rawlings has strongly held opinions, for example, about the use of instruments to measure changes in hydration, to which he held steadfastly. I did not form the view that his evidence was tainted by, or inappropriately affected by, his consulting relationship with P&G. I do not lessen the weight to be given to Dr Rawlings’ evidence on this latter basis.

Professor Lavker

29    Professor Lavker is a Professor of Dermatology (with tenure) and Director of Research in the Department of Dermatology at the Feinberg School of Medicine at Northwestern University in Chicago, United States of America, where he has been on faculty since 2002. Prior to this, he was a member of the faculty of the University of Pennsylvania for 26 years, attaining the rank of Professor of Dermatology (with tenure) and Director of Research. Professor Lavker has spent the last 42 years studying various aspects of cutaneous biology. This has encompassed investigations into the structure and function of various aspects of the human skin. He has published over 130 original peer reviewed papers and over 35 chapters and reviews.

Professor Humbert

30    Professor Humbert is a Professor of Dermatology at University Hospital in Besançon, France. He is also Director of the Centre for Studies and Research on the Integument, which is an informal structure located within the unit for functional exploration of the skin at the University Hospital. Since 1993, Professor Humbert has held the positions of Head of the Department of Dermatology and Director of the Laboratory of Cutaneous Engineering and Biology at the University of Besançon. From 2005 to 2010, Professor Humbert was the chairman of the International Society for Biophysics and Imaging of the Skin (ISBS). He is currently a member of the ISBS Executive Committee. He is the co-editor of a leading practitioner textbook entitled “Measuring the Skin: Non-invasive Investigations, Physiology, Normal Constants” published in 2004.

THE SHAVING PROCESS

31    Both parties recognise that the steps and time taken by men when using manual razors in the shaving process are not uniform. However, for the purposes of this case, the parties agree on a basic series of steps:

1.    Wetting the face with hot water to soften the beard.

2.    Applying shaving foam.

3.    Using the razor such that the first stroke removes most of the shaving foam and the hair.

4.    Rinsing the face.

5.    Drying the face with a towel.

32    While there was some dispute about the quantity of water used for rinsing and the time between rinsing and drying, this did not, in the end, affect the analysis. P&G submits, and I accept for the purposes of these proceedings, that men routinely dry their faces immediately after rinsing, assuming that they do not bathe or shower following the shaving process.

33    It is not in dispute that the wet shaving process includes the use of pre-shave products, water, shaving creams and gels and post-shave products.

EVIDENCE ON THE TRANSIENT HYDRATION REPRESENTATION

34    The majority of the parties’ evidence was directed to establishing whether the Hydro Products provide a moisturising/hydrating effect on the user’s face during the shaving process.

Background

Skin hydration, moisturisation and skin lubrication

35    Professor Lavker describes “skin hydration” as the amount of moisture in the outer layer of the skin, a definition that he says is, in his experience, accepted by dermatologists, cutaneous biologists and individuals in the cosmeceutical industry. It can be achieved by short-term means, such as when water is applied to the skin surface, or longer term, as in the case of occlusion, which “seals” the skin to prevent evaporation. In contrast, skin moisturisation is the process of delivering agents that restore the lipid bilayer of the stratum corneum (SC), add moisturising ingredients and promote the removal of the outermost cells of the SC (desquamation). The term “moisturisation” is, as described by Professor Lavker, product and context-dependent.

36    Professor Humbert draws a distinction between moisturisation, which he describes as a dynamic state leading to hydration of the skin, and hydration, which he describes as a static state of hydrated skin. He explains that the act of moisturisation leads to the hydrated state of the skin. The hydration effect is a state at a given time “t”, whereas moisturisation has a particular temporal aspect. It denotes a period of time during which the skin will benefit from the emollient effect.

37    Skin lubrication occurs when a substance is applied to the skin that influences friction. Lubrication of the skin can be effectively achieved by water, aqueous surfactants and oil-based products. This aspect of skin care is also product and/or formula dependent.

38    There is no dispute between the experts that hydration means the addition and retention of water in the skin. Water is required to maintain a properly functioning SC. Thus, skin hydration is beneficial.

39    As Dr Rawlings explains it, simply adding water to the skin will not “hydrate” the skin in any meaningful way because the water will evaporate from the skin’s surface. Water does not hydrate the skin for a sufficiently long time truly to moisturise the skin. Long-lasting hydration, rather than the masking of skin dryness by emolliency, is provided either by the application of ingredients that bind water, which then reside on the skin’s surface or penetrate into the surface layers of the skin, or by the application of ingredients that reduce the loss of water from the surface layers of the skin. As explained by Dr Janet Coope-Epstein, a Development Chemist working for Energizer Inc who was part of the team that developed the Hydro Products, the latter occurs by retarding the evaporation of water on the skin surface.

40    Humectants are classified in the former category. They hold on to water and help retain water in the skin. Occlusive agents are in the latter category. Both are commonly found in moisturisers that provide long-lasting hydration of the skin.

41    When there is low humidity, the skin is constantly losing water to the air. Simply washing the skin with water only results in a temporary increase in the water content of the skin as the water will then be lost from the skin’s surface, usually in a matter of minutes. Effective moisturisers may act by helping to reduce water loss from the skin, that is, by occlusion.

Relevant matters ultimately not in issue

42    Ultimately, a number of matters were not in issue:

    Skin hydration is the amount of moisture in the outer layers of the skin and on the skin surface.

    Hydration in moderation is beneficial to the skin.

    Skin moisturisation is the process of increasing skin hydration through the topical application of complex chemical agents.

    Skin lubrication is the application of substances that will affect (reduce) friction.

    It is possible for a single product both to hydrate and to lubricate the skin.

    Because skin surface cells and the emerging hair are in intimate contact, it is virtually impossible to cut or shave the beard closely without removing some skin surface cells. An inevitable consequence of a “close shave” is the removal of beard hair along with a portion of skin surface cells that would normally be shed or desquamated. These cells do not play a significant role in barrier and/or hydrating function and thus shaving is not necessarily bad for the skin.

    Water softens the SC. Water is required to maintain a properly functioning SC and thus skin surface hydration is beneficial.

    The moisture level of the skin is most often measured by assessing levels of capacitance or conductance.

    There is no fixed time properly to measure skin hydration; it is context-dependent.

    Polyethylene oxide (polyox) is a common ingredient used in razor comfort strips by Energizer and Gillette.

    The Hydro 3 and Hydro 5 have a gel reservoir above the blades that primarily contains a proprietary polyethylene oxide (PEG-115M) (Hydro Polyox).

    During the shaving process, Hydro Polyox is activated by water, exits the reservoir and is distributed over the skin surface.

    Hydro Polyox has the capacity to bind water.

    Hydro Polyox is capable of absorbing water, adhering to the skin and has humectant properties. During the time that it adheres to the skin it is capable of providing a measure of hydration.

    Hydro Polyox is of higher molecular weight than the polyox used in P&G’s shaving products. This is a material physical difference.

    Hydro Polyox does not have any hydrating effect on the skin once men pat their faces dry with a towel.

    The gel reservoir of each of the Hydro 3 and Hydro 5 contain the same formulation.

Issues with experimental data

43    The parties each rely on experimental data in support of their case. There does not appear to be a challenge to these data. However, both parties contend that deficiencies in the methodologies used in the experiments run on behalf of the other party make the data unsuitable for drawing conclusions on whether or not the Hydro Products have a hydrating effect during the shaving process. Before turning to the experimental data, it is necessary to discuss these arguments. They are:

    the appropriateness of the measuring instruments used in the experiments;

    the mechanism by which Hydro Polyox hydrates the skin; and

    the timing of the measurements in the experiments.

The measuring instruments

44    As stated above, the moisture level of the skin is most often measured by assessing levels of capacitance or conductance. The two most commonly used instruments for measuring skin hydration are the Corneometer, which measures capacitance, and the SkiCon, which measures conductance. In both cases, measurements vary with changes in the moisture level. Both capacitance and conductance measurements are made at intervals of time to measure moisture/hydration. In the context of a product, the measurement of how long-lasting the moisturising or hydrating effect is commences at the time the product is applied.

45    P&G carried out its experimental testing for hydration using a Corneometer, while Energizer carried out its experimental testing using a SkiCon. Professor Lavker and Dr Rawlings agree that there is no concordance between the measurements made by the Corneometer and those made by the SkiCon in the experiments in evidence in these proceedings.

46    Without entering into a discussion of the mechanism of measurement in each case, it can be accepted that the SkiCon measures a more superficial range of depths than does the Corneometer. Although the SkiCon may seem more variable, it is more sensitive in measuring highly hydrated skin. However, the readings using the SkiCon increase significantly in the presence of conductive materials other than water. The scatter of data means that it is more difficult to prove statistically significant differences between treatments by use of this instrument.

47    Professor Lavker and Dr Rawlings agree that:

    The SkiCon has a higher dynamic measuring range than the Corneometer and measures hydration in the superficial layers of the SC.

    The SkiCon is sensitive to the existence of confounding factors.

    The washing of the face with water has an effect on the SkiCon readings.

48    Shaving causes damage to the outer layers of the SC. The lower layers of the SC, exposed by shaving, have a higher quantity of water which, in turn, will result in a higher conductance reading using electrical measures of skin hydration after shaving. Dr Rawlings is of the view that the SkiCon, which measures the hydration of the superficial layers of the SC, will be more sensitive to the removal of the superficial layers of the SC by exfoliation than will the Corneometer.

49    It is fair to say that Dr Rawlings is no fan of the SkiCon. He is not particularly familiar with it and prefers to draw conclusions from Corneometer readings. He rejects SkiCon readings where the hydration levels are measured as high and there is no corresponding indication of hydration in Corneometer readings. It is not in dispute that the presence of glycerol and conductive materials other than water result in increased SkiCon readings. Professor Lavker accepts that absolute SkiCon readings as a measure of hydration can be affected by the presence of conductive material and exfoliation but rejects the suggestion that such matters or other theoretical “confounding factors” explain the SkiCon results in the experiments relied upon by Energizer, to which I turn below. These results support an increased level of hydration from use of the Hydro Products.

50    Professor Humbert describes both the Corneometer and the SkiCon as instruments which allow the electrical properties of the skin to be determined. Professor Humbert expresses the opinion that the SkiCon is an appropriate instrument to measure the hydration state in the upper part of the skin, as in the experiments relied upon by Energizer. Professor Humbert accepts that there may be confounding factors in measurements taken by the SkiCon, such as the inclusion in the measurement of free water on the surface of the skin. However, like Professor Lavker, Professor Humbert is of the view that the results of the experiments involving the SkiCon should not be rejected on this basis.

51    Dr Grove is the Vice President of Research and Development for CyberDERM, an independent testing laboratory that specialises in developing and refining instrumental methods to allow objective assessment of changes in human skin. CyberDERM had previously been retained by Energizer to assist with the design and clinical testing of skin hydration effects of the Hydro Products. Dr Grove has over 35 years experience including in clinical testing of the skin, statistical analysis and interpretation of test data. Dr Grove has experience with both the SkiCon and the Corneometer and is of the opinion that the SkiCon is more suitable for testing any increased hydration during shaving due to its greater degree of accuracy taking measurements in a moisture rich environment. That is, it is more sensitive to measuring changes in increased hydration. In Dr Grove’s experience, the Corneometer might be more sensitive to measuring changes in decreased hydration, which is not the relevant measurement in the experiments conducted in these proceedings.

52    I see no sufficient reason to reject the SkiCon data relied upon by Energizer. The SkiCon is a recognised instrument for measuring increased hydration. Dr Rawlings’ concerns were largely theoretical and did not cause Professor Lavker, Dr Grove or Professor Humbert to reject the results.

The characteristics of Hydro Polyox

53    Polyox water-soluble resins are nonionic, high molecular weight, water soluble polyethylene oxide polymers. Molecular weights range from 100,000 to about 8,000,000. Low molecular weight grades are commonly used in cosmetics, for their ability to impart slip to a lotion.

54    Shear and heat are known to degrade, or reduce, the molecular weight of polyox. An experiment conducted by Dr Coope-Epstein demonstrated that a theoretical molecular weight of polyox of approximately 3,800,000 was reduced on normal processing to 965,000. The higher molecular weight polyox has increased substantivity to the skin. That is, it adheres to the skin more readily. It is of interest that polyox with a molecular weight of 4,000,000 and higher is recorded by Dow Chemicals, the manufacturer of Hydro Polyox, as having the highest level of mucosal adhesion. Hydro Polyox has a higher molecular weight, approximately 6,000,000, than the forms of polyox that are typically used in razor comfort strips. Hydro Polyox, Professor Lavker says, is part of a shaving product and is therefore transient not a leave-on moisturiser. According to Professor Lavker, Hydro Polyox is extremely water soluble. Hydro Polyox is present in the gel reservoir that forms part of the razor. The manufacturing process used for filling and sealing the gel reservoir in the Hydro Products is, according to Mr Follo, the Director of Shaving Sciences for Energizer Holdings Inc (the parent company of Energizer), conducted to avoid high temperatures and pressures, thereby reducing the degradation of Hydro Polyox. This is in order to maintain the high molecular weight which would be lost if conventional comfort strip manufacturing processes were used.

55    The water retention ability of high and low molecular weight polyox is approximately the same. Pre-rinse measurements are not of assistance in any comparative analysis between Hydro Polyox and the form of polyox used by P&G in its shaving products because there is no dispute between the parties that both forms of polyox, though of different molecular weight, have equivalent humectant properties and are each capable of holding 10 to 15% by weight at high relative levels of humidity. That means that both parties accept that both high and low molecular weight polyox including, relevantly, Hydro Polyox, act as humectants, which the experts agree can bind water to the skin, in the time period between application and rinsing. There is no evidence supporting a differential hydrating effect as between Hydro Polyox and another lower molecular weight form of polyox prior to rinsing.

56    During the shaving process, Hydro Polyox is activated by water, exits the reservoir and is distributed over the skin. Energizer claims that the superior substantivity of Hydro Polyox, that is, its enhanced ability to adhere to the skin, is attributable to its higher molecular weight and therefore greater size. This means, it says, that Hydro Polyox is not removed by the rinsing process, unlike the more readily removed lower molecular weight form of polyox. That is, it stays on the skin for longer, withstanding shaving and rinsing, and continues to bind water to the skin as a humectant. Energizer claims that Hydro Polyox will retain the water already present on the skin’s surface following every shaving stroke and will hydrate the skin during the shaving process.

57    An experiment conducted by Dr Coope-Epstein to test the water retention of Hydro Polyox demonstrated slower evaporation from a surface of a solution containing the Hydro Polyox than the evaporation rate of pure water. Professor Lavker reports a study in which it was found that water evaporation was slower for an aqueous solution of polyox when compared with pure water.

58    Dr Coope-Epstein concludes that the relevant mechanism for the hydrating effect of Hydro Polyox is that, as a result of its higher molecular weight, Hydro Polyox stays on the skin for longer and continues to bind water to the skin as a humectant. Professor Lavker’s conclusion as to the relevant mechanism is that Hydro Polyox remains on the surface of the skin following rinsing with water and that it lubricates and transiently hydrates the skin. I accept the evidence of Professor Lavker and Dr Coope-Epstein as to the mechanism by which Hydro Polyox may hydrate the skin.

The timing of measurements

59    Companies that market moisturising products that are designed to be left on the skin or washed off usually follow the recommendations of the European Group on Efficacy Measurements on Cosmetics and Other Topical Products (EEMCO) for instrumental measurements of skin hydration (the EEMCO guidelines). The EEMCO guidelines involve an experimental design whereby the first measurement is taken at least 30 minutes after product application to measure the hydration levels of, for example, cosmetics. The EEMCO guidelines recommend waiting at least 30 minutes before measuring skin hydration for topically applied moisturising ingredients.

60    Dr Rawlings says that at time points earlier than 30 minutes it is impossible to discriminate between the functioning of the moisturising ingredients and the excess water present on the skin, either from the product or as a result of the regimen.

61    In issue were:

    The relevance of the methodology in the EEMCO guidelines which, the experts agree, are primarily designed for leave-on products.

    The relative hydration effect of Hydro Polyox in the context of the amount of water previously applied to the skin during the shaving process and whether there is a need for a time period for measurement capable of reflecting such an effect.

62    Energizer says that the EEMCO guidelines were developed to assess the hydration effects of long-term moisturisers, as distinct from a product yielding a short-term hydration effect. Energizer draws a distinction between a moisturising product and a hydrating product. I refer to Professor Humbert’s distinction at [36]. Professor Humbert says that the EEMCO guidelines are especially used for cosmetic efficacy. He notes that the objective of a shaving gel is different from that of a hydrating cosmetic. He says that shaving with a hydrating gel is not aimed at replacing the hydrating cream that is applied afterwards. Professor Humbert recognises that the studies relied upon by Energizer involve a departure from the EEMCO guidelines, but says that such a departure is warranted because, in contrast with a cosmetic that does not change the surface of the skin but acts directly on the state of the skin, shaving induces changes in the structure of the skin and on the sebaceous function and therefore on the hydrolipidic film.

63    In Professor Lavker’s opinion, there is a fundamental distinction between cosmetic products, known as moisturisers, and transient products, such as shaving products, which have a short-lived moisturising or hydrating effect in the course of their application. In his view, shaving products are not moisturising products “in the classical sense”. He describes skin hydration as the amount of moisture in the outer layers of the skin and on the skin surface, while he describes skin moisturisation as the process of increasing skin hydration through the application of complex chemical agents.

64    Dr Grove is of the view that the EEMCO guidelines are not suitable for assessing hydration during the shaving process, which is short-lived in application and effect.

65    I accept the distinction, for the purposes of this case, between products which provide short-term hydration and products that moisturise. I do not accept that experiments relied upon in these proceedings that did not conform to the EEMCO guidelines, in that the time of testing was less than 30 minutes, are to be regarded as irrelevant on that basis.

66    The parties differ on the relevant time in which to assess whether the Hydro Products have a hydrating effect during the shaving process.

67    Energizer conducted clinical tests at 5, 10 and 15 minutes after the completion of the rinsing step.

68    P&G contends that the intervening step of rinsing the face confounds any extrapolation back to the time of the shaving process. P&G submits that the presence of copious amounts of water invalidates the measurements taken by Energizer at 5, 10 and 15 minutes. P&G says that the appropriate clinical tests should have been in accordance with the EEMCO guidelines, which require measurements to be made at 30 minutes after rinsing. Otherwise, P&G says, the “extreme” hydrating events of initial wetting, the application of shaving cream (which is acknowledged to be hydrating), and the rinsing step render the tests effectively invalid or meaningless.

69    In the alternative, P&G submits that , as Energizer’s claim (as characterised by P&G) is that Hydro Polyox has a differential effect from other forms of polyox in the period between rinsing and drying, 5 to 15 minutes is not the appropriate time period for measurement. P&G points out that once men have rinsed their faces they do not wait 5 minutes in order to dry them. It follows, P&G says, that Energizer has not carried out any clinical tests during the claimed hydration period.

70    Energizer’s case is, essentially, that Hydro Polyox is deposited on the skin by the use of the razor, from the gel reservoir that is placed above the blades. That is, it is deposited after the blades have passed over the skin. The Hydro Polyox adheres to the skin and withstands the rinsing stage, staying on the skin until removed by the process of drying. That means, it contends, that measurements of the level of hydration at the 5, 10 and 15 minute time periods can be extrapolated back, not only to the time immediately post-rinse, but also to the time of deposit of the Hydro Polyox on the skin. Professor Humbert endorses Dr Grove’s approach in testing a hydration effect during shaving by taking measurements shortly after shaving.

71    In Professor Lavker’s opinion:

    Hydro Polyox remains on the surface of the skin following rinsing with water.

    Following application to the skin, Hydro Polyox lubricates and transiently hydrates the skin.

    There is no fixed time post-application of a substance to assess skin moisture levels.

    Assessment of Hydro Polyox’s hydration effects, which are short-term or transient, necessitate measurements close to the cessation of the shaving process (for example, 0-15 minutes).

    Clinical studies conducted by cyberDERM, Energizer Personnel Care, Pro Panel and P&G demonstrate that after a short-term (5 to 15 minutes) exposure to Hydro Polyox, skin hydration values are increased. He would expect that the hydration values would be even higher in the period 0 to 5 minutes after the application of Hydro Polyox during the shaving experience.

72    I accept the evidence from Energizer’s witnesses as to the validity of the experiments, the reasons why measurements taken from 5 to 15 minutes post-shave are relevant and the conclusions which may be drawn from the experiments. Energizer has advanced a theoretical basis for increased hydration by Hydro Polyox based, in turn, on the characteristics of Hydro Polyox and supported by Professor Lavker’s opinion, which I accept. P&G has not discredited, disproved or brought into question this mode of hydration. On the theoretical basis so advanced, an increase in measured hydration that survives rinsing and occurs despite the presence of quantities of free water is explained by and referable to Hydro Polyox.

The experimental results

The P&G tests

73    As stated above, P&G carried out testing for hydration using a Corneometer. There was no significant difference in the readings at 5, 10 or 15 minutes post-shave, nor at 1 hour or 4 hours post-shave.

74    P&G tested the Hydro 5 with and without the hydrating gel reservoir. P&G observed high Corneometer readings with the hydrating gel reservoir at 3 out of 60 time points, being 5 to 15 minutes post shave. Other testing showed a significant difference with higher Corneometer readings when the Hydro 5 was compared to the Gillette Fusion razor (Gillette Fusion). P&G seek to explain these results by referring to:

    the lack of equilibration with ambient conditions;

    the lack of conformity with the EEMCO guidelines for time of testing;

    the measurement of water on the skin introduced by the shaving process rather than measurement of skin hydration; and

    a greater exfoliation effect on the skin with Hydro 5 than with Gillette Fusion.

Otherwise no significant difference was observed.

75    As Energizer does not claim that there is any increased hydration beyond 15 minutes post-shave, many of the P&G tests were not ultimately relevant as they tested outcomes beyond this time frame.

76    Dr Rawlings is firm in his opinion that the P&G studies, which he considers well designed, demonstrate that the use of the Hydro Products leads neither to an increase in the hydration of the skin during the shave nor to a long-term increase in hydration.

77    Professor Lavker’s opinion is that the clinical studies conducted by P&G were, for the most part, designed to test the efficacy of a classical moisturiser, not of a transiently applied shaving product. He also considers that Dr Rawlings approaches the evaluation of the Hydro Products as if they were said to contain classical moisturisers, that is, leave-on products. As Professor Lavker considers the Hydro Products to be transient products of short-term duration, he is of the view that the level of hydration should be properly understood by using different coordinates.

78    Dr Grove criticises one of the P&G tests, the P&G Volar Forearm Study. He says that the use of a moisturising shave balm in that test would mask any hydrating effects of the Hydro Polyox. He also reworked the data to use readings unadjusted by P&G, on the bases that there was no explanation of the adjustments made, that they were not necessary because of existing controls and that, in his experience, the standard approach is to use unadjusted readings. His analysis demonstrates that the P&G Corneometer values were significantly higher at 10 and 15 minutes post-shave for the intact Hydro 5 with the gel reservoir compared to the modified Hydro 5 without the gel.

79    Dr Grove also points out that in two of the P&G studies, the Split Face studies, participants were instructed to pat their faces dry immediately after shaving and before any of the instrumental measurements were taken. P&G contends that such action is in accordance with the normal shaving process but Dr Grove says that the drying dramatically alters the skin’s hydration state and is not an appropriate step where hydration during the shaving process and before drying is being assessed. He says that it is not surprising that no hydration effects were demonstrated in these studies.

80    Dr Grove also gives explanations for the P&G test results in which no increased hydration with Hydro Polyox was measured. For example, measurements indicating less hydration where use of an intact form of the Hydro Products was compared to use of a form of the Hydro Products with an empty gel reservoir could be explained by more disruption to the SC with use of the empty gel reservoir than with the intact product, which released skin conditioning ingredients. He also challenges the statistical basis for some of P&G’s conclusions.

81    Dr Grove was not challenged on his conclusions by cross-examination.

82    Professor Lavker concludes that the P&G clinical studies support the conclusion that the Hydro 5 Products, and therefore also the Hydro 3 Products, have a hydrating effect during the shaving process, based upon the short-term 5 to 15 minutes post-shave data. He considers 1 and 4 hour post-shaving time points and the EEMCO guidelines to be irrelevant for a product that is not a traditional moisturiser, as understood within dermatology. As to the earlier time points, in a comparison measured with a Corneometer of the bladeless Hydro 5 with and without an intact reservoir, Professor Lavker notes that at early time points the sites treated with gel were higher, particularly at 5 minutes post-shave. Professor Lavker observes that the lack of statistically significant data may be explained by the limitations in sensitivity of the method of measurement and the lack of sensitivity at high levels of hydration.

The Energizer tests

83    Dr Grove describes the methodology for the Energizer experiments which, based on his experience, was sound and proper. He was not cross-examined to the contrary. He took measurements at 5, 10 and 15 minutes post-shave which, he says, are the best times to determine or ascertain whether the skin is hydrated during the shaving process, not after it. He did not rub the surface of the skin dry to preserve any additional hydration effect. He acknowledges that the SkiCon does not distinguish between water from the wet shaving environment and the hydration effect of Hydro Polyox but says that, as the skin dries out, hydration levels will tend to decrease less rapidly if the Hydro Polyox is acting as a humectant. He also designed the experiments with suitable controls to test the differences attributable to the presence of Hydro Polyox.

84    Dr Grove’s conclusions from the experiments are that:

    Within the first 15 minutes after shaving, there is a significantly greater level of skin surface moisture associated with the Hydro 5 than with the Gillete ProGlide razor or the Gillette Fusion. The differences are statistically significant at the 99% confidence level and the 5, 10 and 15 minute post-shave time points.

    The enhanced hydration is due to the humectant properties of the Hydro Polyox that is released from the gel reservoir during the shaving process.

    The scientific data support the conclusion that the Hydro Products hydrate the skin as one shaves.

    No statistically significant difference exists at the post-15 minute assessment interval, consistent with the hydration effect of Hydro Polyox being short-lived.

     Hydro Polyox has the ability to be retained on the skin surface following the shaving experience.

85    Dr Coope-Epstein conducted a number of studies to understand the properties of polyox in the context of hydration. She concludes that ‘due to the presence of [Hydro] Polyox, when the skin is wet, damp and drying as part of the shaving process, there will be a hydration effect’. One of those tests was a standard “skin feel analysis” which assessed that it took 5 rinses to remove Hydro Polyox residue from the arms of the participants.

86    External testing of the absorption of moisture from the atmosphere indicates to Dr Coope-Epstein that Hydro Polyox absorbs moisture from the atmosphere rapidly when the relative humidity is greater than 60%, as in a shower or bathroom environment. An experiment that she conducted on the water retention of Hydro Polyox led to the conclusion that Hydro Polyox has the ability to hold on to water, a characteristic of humectants. This is evidenced by pure water showing an evaporation loss of 7% of water from a surface while Hydro Polyox only shows a loss of 4% of water, results consistent with water retention properties.

87    P&G contends that the Energizer experimental results are not scientifically sound. This, P&G says, is because:

    the measurements were made at 5, 10 and 15 minutes after rinsing;

    the measurements were made in the presence of copious amounts of water;

    the skin did not have an opportunity to return to equilibrium after rinsing;

    the tests were not conducted in accordance with the EEMCO guidelines; and

    there were no controls for the possible effects of water, exfoliation and what it contends are the electrolytic properties of Hydro Polyox, each of which affect the reliability of the SkiCon, the instrument used by Energizer to measure the hydration of the skin.

88    Professor Lavker considers the clinical studies undertaken by and on behalf of Energizer to be well-conducted. He also observes that many of the concerns expressed by Dr Rawlings as to the effect of exfoliation and desquamatisation of the SC would be accounted for by the controlled studies and the experiments conducted without blades. He concludes that the shaving system of the Hydro Products has a hydrating effect, based on the following SkiCon data:

    In comparisons between the Hydro 5 and the Gillette Fusion without a polyox gel reservoir, there was a significantly greater level of surface skin hydration with the Hydro 5 at 5 minute post-shave. The conductance levels for both systems were ‘dramatically lower’ at 10 minutes post-shave, although the Hydro 5’s conductance level was still higher.

    In comparisons between shaving with a bladeless Hydro 5 with and without the gel reservoir, greater hydration levels were noted for both but were significantly higher in the cartridge containing the Hydro Polyox at 5 minutes post-shaving. The absence of blades would also minimise any effects of exfoliation.

89    Professor Humbert says that the tests carried out by Dr Grove are in accordance with recognised and well-established guidelines. He notes that the experiments were conducted on the lower limbs and says that there is currently nothing to suggest that hydrating effects on one area of skin cannot be extrapolated to another area. Professor Humbert concludes from Dr Grove’s experiments that:

The hydrating effect of the [Hydro Products] tested cannot be denied. Indeed, it is hydration that has been measured, under irreproachable methodological conditions, with a device validated and recognised by the profession.

90    Professor Humbert was only cross-examined on the relevance of the EEMCO guidelines.

Conclusion

91    I accept that the evidence establishes that, by reason of the Hydro Polyox in the Hydro Products, there is an increase in hydration of the skin that lasts from the time of application of the Hydro Polyox until the face is dried after rinsing. That is, the hydration effect exists for the duration of the shaving process.

The reasonable consumer

92    As is evident from Campomar, the Court is required to identify the characteristics of the class of consumers to whom a representation is alleged to have been made in order to assess whether the representation has been conveyed.

93    It does not appear to be in dispute that the class of persons to whom the Hydro Materials is addressed is large, comprising males of shaving age. However, the characteristics of the reasonable consumer are in dispute.

94    Energizer contends that the nature of the hypothetical consumer is crucial to understanding the relevant background and context in which the hypothetical consumer would understand the Hydro Materials. Energizer points to the unchallenged evidence of Mr De Beer, Energizer’s Marketing Manager for Personal Care products, together with the evidence of Dr Coope-Epstein, Mr Andrews, a solicitor representing Energizer, and Ms Zupkovsky, the Research and Development Blade & Razor Claims Innovation Leader at P&G, in contending that the hypothetical reasonable consumer displays the following characteristics and awareness:

    He knows that the wet shaving process involves multiple steps including preparation, lathering up, shaving and moisturising and is aware that there are different products for each step.

    He is familiar with the distinction between pre-shave and post-shave moisturising products, as well as traditional “leave-on” cosmetic moisturisers.

    He is familiar with the use of the term “hydration” in connection with products which hydrate the body or skin, such as sports and soft drinks, and knows that the term does not refer only to moisturisers. He knows that the image of water is synonymous with hydration rather than moisturising.

    He is aware that razors commonly incorporate features traditionally described as “comfort strips” to lubricate the skin in order to make shaving a more comfortable experience.

    He regards a new razor blade cartridge as expensive and is reluctant to change brands due to the “investment” made in the handle of his existing razor. However, he is prepared to switch brands in response to technological innovations.

    Novel and interesting product names and eye-catching and appealing promotional campaigns incorporating elements of surprise may alert him to unexpected product innovations.

    He has a high familiarity with exaggerated claims being made in relation to wet shaving and other personal care products.

    He is familiar with the common use of exaggerated water techniques in advertisements, such as for soft drinks and sports drinks.

    He has a high level of awareness of the Gillette brand, which he regards as synonymous with the razor product category. Accordingly, he has a high level of familiarity with the branding, slogans, advertising and other promotion devices used in relation to Gillette, including the widespread use of “best”; for example “Best A Man Can Get”.

95    P&G contends that commercials for soft drinks and sports drinks are irrelevant to the characteristics of the reasonable consumer. However, P&G does not directly address by evidence the specific characteristics of the reasonable consumer.

96    It may generally be accepted that the reasonable consumer has the characteristics for which Energizer contends.

The Transient Hydration Representation

97    As stated earlier, P&G alleges that each of the Hydro Materials contravenes ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation. Energizer admits making the Transient Hydration Representation in each of the Hydro Materials.

98    I have found above that the evidence supports the contention that the Hydro Products have a hydrating effect on the user’s skin during the shaving process. However, P&G contends that, even if Energizer has established that the Hydro Products have a hydrating/moisturising effect on the user’s skin during the shaving process, Energizer has nevertheless contravened the relevant provisions of the ACL by making the Transient Hydration Representation because the hydrating effect of the Hydro Products on the user’s skin is de minimis.

99    This raises two issues:

1.    Do the existing pleadings in these proceedings require that the hydrating/moisturising effect must be greater than de minimis?

2.    If so, does the evidence support a hydrating/moisturising effect that is greater than de minimis?

100    It is convenient to deal with these issues separately.

The pleadings

101    Energizer contends that it is only necessary for it prove that there is a moisturising/hydrating effect and that the extent of such an effect is not part of the case brought by P&G. Energizer relies on P&G’s Second Further Amended Statement of Claim, which relevantly states:

13.    [Through the Hydro Material Energizer has] represented to the public, including to consumers and potential consumers of the [Hydro] Products… that:

(a)    the use of the [Hydro] Products will have a moisturising effect on the user’s skin;

(b)    the benefits of the increased moisturisation or hydration will continue after shaving;

(c)    the hydration effect claimed by [Energizer] will not be a transitory effect during shaving;

(d)    the hydration effect claimed by [Energizer] will not be limited to the lubrication of the shaving process;

or some of those representations. (The representations set out in sub-paragraphs (a) to (d) are collectively called the Hydration Representations).

…

17.    The Hydration Representations, and each of them, are and were false and misleading and deceptive in that:

(a)    the use of the [Hydro] Products will not generally, or at all, have a moisturising effect on the user’s skin;

(b)    [deleted]

(c)    the user of the [Hydro] Products will not experience a moisturising effect that will be of a degree sufficient to have a significant beneficial effect on the user’s skin;

(d)    any moisturising effect on the cells of the user’s skin which does occur will be insignificant and transitory and will not continue for any significant period after the conclusion of the shaving process;

(e)    the Hydrating Gel Reservoir and the Lubricating Gel Reservoir components of the [Hydro] Products have substantially identical ingredients, which principally provide lubrication during the shaving process;

(f)    there is no, or no reasonable and adequate, scientific foundation for making the Hydration Representations;

(g)    the ingredients incorporated by [Energizer] into the Hydrating Gel Reservoir and the Lubricating Gel Reservoir are not physically and chemically capable of moisturising or hydrating the face of the user in the manner claimed by [Energizer] in the Hydration Representations to any significant or measurable degree.

102    Energizer says that P&G’s case has been pleaded on the basis that the only representations which arise in respect of the hydrating properties of the Hydro Products are those pleaded in [13] of P&G’s Second Further Amended Statement of Claim. Energizer says that there is a fundamental disconformity between the representations pleaded in [13] and the pleaded facts alleged to give rise to the falsity of those representations in [17] of P&G’s Second Further Amended Statement of Claim. Energizer submits that the pleaded facts in [17] cannot establish the falsity of the representation in [13(a)] because each of the pleaded facts in [17] allows for the Hydro Products to have “a” moisturising effect (with the exception of [17(f)], which has no bearing at all). Energizer points out that P&G has not alleged that Energizer has made a representation with respect to the Hydro Products having a “significant beneficial effect”.

103    Energizer says that if prior to the hearing the parties had interpreted the pleading in the manner for which P&G now contends, then the evidence on the extent of any hydration effect would have been far more extensive than a simple calculation performed in Dr Rawlings’ reply report. Further, Energizer says that it would have adduced evidence on this issue.

104    However, at a case management conference on 16 June 2011, the parties agreed to delete the statement that ‘the increased moisturisation or hydration experienced by the user will be beneficial to the user’s skin’ from [13] of the Second Further Amended Statement of Claim. This was on the understanding between the Court and the parties that a representation that the use of the Hydro Products will have a moisturising effect on the user’s skin, as pleaded in [13(a)], necessarily involves a representation that the increased moisturisation or hydration experienced by the user will be beneficial to the user’s skin.

105    Accordingly, P&G submits, and I accept, that if the representation in [13(a)] is made, it is implicit that the hydration effect will be greater than de minimis. That is, the pleadings require a hydration effect that is greater than de minimis. This means that if P&G were able to establish that the hydration effect of the Hydro Products is de minimis, Energizer would have contravened ss 18(1) and 29(1)(g) of the ACL in making the Transient Hydration Representation.

Is the hydrating/moisturising effect greater than de minimis?

106    Professor Humbert says that it is probable that hydration during the shaving process reduces the sensations of pricking or pulling the skin. He says that, for him, the essential issue as to the benefit of hydration is that the use of a razor does not lead to skin which is in a drier state than before shaving.

107    However, P&G approached the issue of whether the hydration effect is greater than de minimis by relying on an assessment of the quantity of any hydration effect.

108    Dr Rawlings calculates the amount of Hydro Polyox that is applied to the face and neck during each shave. Based on a gel reservoir lasting at least 10 shaves and the shaving surface area of the face and neck being on average 296 cm², Dr Rawlings calculates that approximately 0.025 mg/cm² of hydrating gel is deposited on the face and neck during each shave. Dr Rawlings concludes that if the moisturising ingredients are only 0.04% of the formulation, this equates to 0.001 mg/cm² of moisturising ingredient being applied. Dr Coope-Epstein disagrees with Dr Rawlings’ calculation to the extent that it relies on the moisturising ingredients being only 0.04% of the formulation. She says that the correct concentration of the moisturising ingredient on the skin using Dr Rawlings’ calculation is 0.025 mg/cm². In his reply evidence, Dr Rawlings says that, accepting Dr Coope-Epstein’s calculation and based on the Energizer experimental data, the maximum increase in hydration effected by the Hydro Polyox would be in the order of 1.3% of the natural level of hydration of the SC in the context of a dry skin surface.

109    Dr Rawlings also gives evidence on the relative effect of the Hydro Polyox in a wet shaving context. He calculates that the contribution to the level of hydration of the skin from other sources of water in the shaving process, such as the wetting of the skin and the application of shaving cream, would be 1000 times greater than that of Hydro Polyox.

110    Professor Lavker does not challenge Dr Rawlings’ estimates of the relative effect of the presence of Hydro Polyox. He accepts that they are ‘probably well within the ballpark’.

111    P&G contends that Professor Lavker’s evidence taken as a whole does not support the proposition that the Hydro Products have a material hydrating effect, but only that that they have a hydrating effect. P&G relies on Dr Rawlings’ and Professor Lavker’s evidence to submit that even if the evidence establishes that the Hydro Products have a hydrating effect, the effect is ‘inconsequential’ and cannot, in a relative sense, support the claims made by Energizer in the Hydro Materials. P&G says that the Court’s task is to compare what hydration effect is conveyed in the Hydro Materials relative to the factual findings on the hydration effect of the Hydro Products and to determine whether or not what is conveyed is misleading.

112    Energizer submits that it cannot be suggested that there is a ‘magical number’ below which any hydration effect is de minimis and above which any hydration effect is real. Energizer says that P&G has not pointed to any industry standard, guideline or practice which indicates a quantitative benchmark for what constitutes a hydrating effect and that even if the EEMCO guidelines were applicable, they do not assist.

113    Energizer adds that where witnesses such as Dr Grove and Professor Lavker gave evidence that a hydration effect exists, it is plain that this was in the context of a real hydration effect. It cannot, Energizer says, be stated that the expert evidence was to the effect that ‘I’m saying there’s a hydration effect because I believe that technically I can but really I actually think that there is no real hydration effect’. Energizer points out that this was not put to Professor Lavker in cross-examination. Energizer also emphasises that the results in the studies indicate the existence of a hydration effect at statistically significant levels, which witnesses such as Professors Lavker and Humbert and Drs Grove and Thornton, the latter of whom is a statistician who gave evidence on behalf of Energizer, interpreted as demonstrating a significant hydration effect.

114    Further, Energizer contends, although the reasonable consumer would understand from the Hydro Materials that the Hydro Products have a hydrating effect on the user’s skin, he would not adopt a quantitative benchmark for this hydration effect. Energizer says that if the reasonable consumer was thinking anything at all about the extent of the hydrating effect it would be that the effect is more than de minimis.

115    P&G contends that the Court does not require evidence of a ‘magical number’ or an industry benchmark for hydration because the relevant class of consumers is not industry scientists. The key consideration, P&G submits, is the message conveyed by the Hydro Materials to the class of consumers. P&G contends that the question of whether the hydration effect is de minimis is to be measured against a reasonable consumer’s understanding of the Hydro Materials. P&G says that the reasonable consumer will not think that the level of hydration indicated in the evidence accords with that which is represented by the Hydro Materials, which is that the Hydro Products cause an increase in hydration that is beneficial, material and worthwhile. P&G emphasises that a reasonable consumer would not change his razor for a 1.3% change to the hydration level of the skin or the addition of hydration equivalent to 1/1000th of the water already present on the face during the shaving process.

Conclusion

116    Although the hydration effect may be transient, the available evidence supports an effect that is more than de minimis and does not establish that it is inconsequential. Professor Lavker emphasises that, although the hydration effect is quantitatively small, it is still a hydration effect. Dr Coope-Epstein explains a mechanism whereby a small increase in hydration by reason of the effect of the Hydro Polyox on the skin could have the beneficial effect of longer retention of water on the SC and Professor Humbert explains the possible benefits of the increased hydration. Noticeable hydration effects are reported in the experiments.

117    P&G accepts that it has the onus of establishing that Energizer has contravened ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation. It has not discharged the onus of proving that the hydration effect of the Hydro Products is de minimis.

118    The Transient Hydration Representation is not false, misleading, likely to mislead, deceptive or likely to deceive. Accordingly, the making of the Transient Hydration Representation in the Hydro Materials does not contravene ss 18(1) and 29(1)(g) of the ACL.

119    Some of the Hydro Materials refer to a “blast” of hydration. This might raise the question whether the relative hydration effect of the Hydro Products would be considered by the reasonable consumer to be a “blast”, even bearing in mind the reasonable consumer’s understanding of the exaggeration commonly used in the advertising of wet shaving products. However, the pleadings and statement of agreed issues do not support a separate consideration of the Hydro Materials in the context of the Transient Hydration Representation. Despite some references in closing submissions by P&G, I was not directly asked to do so and the parties did not address their submissions on this basis.

PRELIMINARY ISSUES CONCERNING THE LONG-LASTING HYDRATION REPRESENTATION AND THE BEST SHAVE REPRESENTATION

Individual consideration of the Hydro Materials

120    The parties agree that whether the Long-Lasting Hydration Representation and, where relevant, the Best Shave Representation are made by the Hydro Materials, is to be considered individually for each of the Hydro Materials.

121    However, P&G contends that the Court should take into account that some members of the class of consumers will be exposed to more than one of the Hydro Materials, with the effect that the strength of the claims in the Hydro Materials will be reinforced by repetition and by different modes of expression. P&G relies on the fact that some of the Hydro Materials contain references to or links (particularly through hyperlinks) to other of the Hydro Materials. P&G contends that the Court should infer from these references and links that some members of the class of consumers will accept the invitation to access other of the Hydro Materials.

122    P&G also says that many consumers will be led to examine the Hydro Packaging as a result of other forms of the Hydro Materials, including the Television Advertisements and the Zoo Weekly Advertisements. P&G accepts that there is no evidence which establishes numerically the proportion of people exposed to more than one of the Hydro Materials. Nevertheless, P&G contends that if there is a reasonable probability that a significant number of the potential consuming class will be led from one of the Hydro Materials to another of the Hydro Materials, evidence as to some fixed probability that people will remember the message from one situation to another is unnecessary. It is sufficient, P&G says, if there is a reasonable probability that people will get such a reinforced message.

123    In the absence of evidence, even as to whether there is a reasonable probability that a member of the consuming class will be led from one of the Hydro Materials to another of the Hydro Materials, I attach little importance to any references (other than hyperlinks) in certain of the Hydro Materials to other Hydro Materials, although the importance attributed to such references depends on their context. In a general sense, I attach greater importance to any hyperlinks to other Hydro Materials contained in certain of the Hydro Materials, although, again, the importance attributed to such references depends on their context.

124    I do take into account, in considering the representations made in the Packaging, that the consumer may have already been exposed to other of the Hydro Materials. However, if the consumer had been so exposed, for example to the Television Advertisements or the Zoo Weekly Advertisements, and then examines the Packaging, the representations made in the Packaging would, in my view, assume prominence.

Approach to consideration of the Long-Lasting Hydration Representation

125    P&G alleges that each of the Hydro Materials contravenes ss 18(1) and 29(1)(g) of the ACL by making the Long-Lasting Hydration Representation. Energizer denies making the Long-Lasting Hydration Representation in each of the Hydro Materials, but admits that if such a representation is found to have been made, it has contravened ss 18(1) and 29(1)(g) of the ACL.

126    It is necessary to deal with two of the general submissions made by the parties concerning the Long-Lasting Hydration Representation.

127    Energizer relies on the characteristics of the reasonable consumer outlined above to submit that that the reasonable consumer, who is clearly aware that the Hydro Products are razors and not containers of moisturisers, will expect that the Hydro Products’ features are bound up with and limited by the boundaries of the particular function they perform: shaving. Accordingly, Energizer says, by reason of the Hydro Products’ shaving function, the reasonable consumer would understand that the Hydro Products’ hydration feature is limited to the duration of the shaving process.

128    In response, P&G accepts that the Hydro Materials will not lead the consumer to think that a razor is a conventional moisturising lotion but points out that the allegation is not that the Hydro Products are traditional moisturisers, or that they would necessarily have all of the effects of a moisturiser. P&G points out that the claim is that the Hydro Products will have a hydrating and a moisturising result and contends that it is this claim that can be effective as an advertising point of differentiation without the consumer necessarily thinking ‘my razor is now a moisturiser’. P&G submits that the claim of hydration in the Hydro Materials will cause the consumer to think, at the least, that the hydration is an effect that remains after the shaving process. Further, P&G says that although the shaving process itself is short, it is not understood to have a short-term result; the effects of the shaving process, particularly on a man’s beard, are measured throughout the day. Accordingly, P&G contends, it is incorrect to say that since the Hydro Products are razors, their effects would be understood as being limited to the shaving process.

129    There can be little doubt that the reasonable consumer is aware that the Hydro Products form part of a shaving system. This is a factor to be taken into account in assessing the Long-Lasting Hydration Representation, particularly in circumstances where the Hydro Materials place emphasis on certain features of the shaving process that are confined to the shaving period.

130    However, the shaving function of the Hydro Products does not necessarily mean that the reasonable consumer would regard the effects of the Hydro Products as being limited to the shaving process. First, as P&G points out, the effects of the shaving process are not confined to the period in which a man actually shaves. Secondly, as will be seen from closer examination of the contents of the Hydro Materials below, the Hydro Materials are replete with claims such as “new” and “revolutionary”. In my view, the reasonable consumer’s knowledge of the shaving process, hydration and moisturisation would not be such that he would regard as implausible the possibility of a razor having a hydrating effect on the user’s skin beyond the shaving process.

131    Therefore, Energizer cannot rely on the overarching defence that, based merely on a consideration of the nature of the Hydro Products, the reasonable consumer would not understand the Long-Lasting Hydration Representation to have been made. That is, it is necessary to examine the contents of each of the Hydro Materials to determine whether it makes the Long-Lasting Hydration Representation.

132    As another general submission, Energizer points to Mr De Beer’s unchallenged evidence that Energizer has not received a single complaint regarding the capability of the Hydro Products in circumstances in which there has been a high conversion rate to the Hydro Products and where the Packaging includes a performance guarantee whereby a dissatisfied customer is entitled to a refund or replacement. Energizer submits that this, along with the absence of any evidence from P&G that a consumer has understood the Long-Lasting Hydration Representation in the manner alleged by P&G, tends against a suggestion that the reasonable consumer would regard the Long-Lasting Hydration Representation as having been made; otherwise the resulting disappointment would have been profound and undoubtedly communicated to Energizer.

133    P&G points to authorities to the effect that the question for the Court is not whether particular purchasers were or were not deceived (Annand & Thompson Pty Ltd v Trade Practices Commission [1979] 25 ALR 91 at 111) and that evidence of conclusions formed by individual consumers does not conclusively establish whether or not the conduct was likely to mislead or deceive (Taco Bell at 202). P&G says that the technical evidence in these proceedings demonstrates that the question of whether or not a hydration effect is provided by the Hydro Products is a complex and scientific matter. It is not, P&G says, something that the average consumer can investigate or know with any appropriate degree of accuracy. Accordingly, P&G submits that subjective views of individual consumers in relation to the question of whether the Hydro Products provide a hydration benefit would be of limited probative value.

134    As is demonstrated by the disagreement between the parties and the experts on the scientific evidence concerning the Transient Hydration Representation, the issue of whether the Hydro Products have a hydrating effect on the user’s skin is complex. Both parties rely on the scientific evidence to establish the existence of such an effect or otherwise, without reference to the view of or evidence from the average consumer. In my view, if a consumer had formed the view that the Long-Lasting Hydration Representation had been made by the Hydro Materials (or some of them), he would have no way of determining whether, in a scientific sense, the use of the Hydro Products had resulted in a hydrating effect on his skin beyond the shaving process. There is no dispute that there is no such effect. The consumer would have no basis for complaining about the Hydro Products beyond imprecise and general observations based on the consumer’s perception from using the Hydro Products. Accordingly, I do not accept that the lack of evidence of complaint from consumers or any actual misunderstanding of the claims by consumers is relevant to the determination of whether the Long-Lasting Hydration Representation has been made.

Approach to consideration of the Best Shave Representation

135    P&G also alleges that, with the exception of the YouTube Page, each of the Hydro Materials make the Best Shave Representation, in particular by making a claim that the Hydro 5 provides “the best shave for your skin” (the “best shave for your skin” claim). The “best shave for your skin” claim is made only in respect of the Hydro 5. For the Hydro 3, the claim is made that it “shaves better than Mach 3” (the “shaves better than Mach 3” claim). P&G does not directly complain about the “shave better than Mach 3” claim, although, as is detailed below, it contends that this claim is relevant to consideration of the “best shave for your skin” claim.

136    P&G submits that while it may be accepted that the expression “best shave” is, in terms, reasonably open to a conclusion of puffery, the fact that the “best shave for your skin” claim includes the words “for your skin” means that Energizer claims superiority in respect of specific attributes of the Hydro 5’s performance and benefits. This assertion of superior attributes must, P&G says, be understood as being superiority compared with other products.

137    Energizer denies making the Best Shave Representation on the basis that the use of the “best shave for your skin” claim in the relevant material is a slogan and mere puffery. Energizer contends that members of the public are generally familiar with exaggerated hyperbolic statements in the market for personal care products and other products, including claims such as “best” in relation to those products.

138    It is not in dispute that the question of whether the “best shave for your skin” claim constitutes mere puffery needs to be considered in the full context in which it is made and in light of the Hydro Material under consideration as a whole (Parkdale v Puxu per Gibbs CJ at 199). P&G emphasises that it is not simply a question of whether the adjective “best” is used or whether “best” is a mere puff but how that word is used in context. P&G says that while the “best shave for your skin” claim might in isolation be considered as puffery, when viewed together with other claims in the Hydro Material under consideration, it is a statement which the reader is expected to take literally and to treat seriously. P&G contends that the claim is capable of being proven correct or incorrect, which is inconsistent with puffery (Jainran Pty Ltd v Boyana [2008] NSWSC 468 at [117] per Bryson JA). P&G contends that, as the “best shave for your skin” claim in context contains a statement of fact and is highly specific, it is not puffery and is clearly capable of being misleading or deceptive.

139    There are two aspects to the consideration of the “best shave for your skin” claim depending on the context in which it is used in the Hydro Materials:

    is it a statement of fact in the Jainran sense and not puffery for that reason; or

    is it a comparative claim and not puffery for that reason?

140    I reach conclusions on the puffery aspect of the Best Shave Representation in relation to each of the relevant Hydro Materials below. If the “best shave for your skin” claim is mere puffery, the Best Shave Representation has not been made and Energizer has not contravened the ACL in this respect. If the “best shave for your skin” claim is not mere puffery and the Best Shave Representation has been made, Energizer also contends that the Best Shave Representation is not false, misleading, likely to mislead, deceptive or likely to deceive. However, as explained above at [11], whether this is so is not for determination in these reasons.

CONSIDERATION OF THE Long-Lasting Hydration REPRESENTATION AND THE BEST SHAVE REPRESENTATION

141    I now turn to consider each of the Hydro Materials. I will briefly outline its content and then reach conclusions on whether it has made the Long-Lasting Hydration Representation and, where relevant, the Best Shave Representation.

The Packaging

142    The Hydro 5 Packaging, the Hydro 3 Packaging, the Hydro 5 Replacement Cartridges Packaging and the Hydro 3 Replacement Cartridges Packaging are annexures A, B, C and D respectively.

143    The front of the Packaging contains various text and images, including:

    the word “NEW!”, the label “Schick” and the name of the product in upper case font;

    the depiction of a breaking ocean wave, which forms the background to the text and images.

144    The Hydro 5 and the Hydro 3 are visible at the front of the Hydro 5 Packaging and the Hydro 3 Packaging respectively.

145    The front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging both include the text “Hydrating Gel Reservoir”. This is adjacent to an image displaying the Hydro 5 and a magnified version of part of a razor, which contains a smaller, clear, unlabelled droplet, a larger, yellow droplet labelled “e” and an even larger, green droplet labelled “ALOE” (the Magnified Hydro 5 Image).

146    The front of the Hydro 3 Packaging and the Hydro 3 Replacement Cartridges Packaging both include the text “Lubricating Gel Reservoir”. This is adjacent to an image displaying the Hydro 3 razor and a magnified version of part of a razor, which contains an unlabelled, yellow droplet (the Magnified Hydro 3 Image).

147    The front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging both contain a green sticker with the words “BEST SHAVE FOR YOUR SKIN”, although the words “for your” are much smaller than the words “best shave” and “skin”.

148    The Hydro 3 Packaging and the Hydro 3 Replacement Cartridges Packaging both contain an orange sticker with the words “SHAVES BETTER THAN MACH 3”, although the word “than” is much smaller than the words “shaves better” and “Mach 3”.

149    The back of the Packaging also contains various text and images, including:

    “HYDRATING GEL RESERVOIR” (for the Hydro 5 Packaging and the Hydro 5 Replacement Packaging) or “LUBRICATING GEL RESERVOIR” (for the Hydro 3 Packaging and the Hydro 3 Replacement Packaging). Immediately beneath this is the text “LASTS UP TO 2x AS LONG as ordinary lubrication strips”;

    the text “5 EASYGLIDE BLADES with Skin Guards that smooth your skin to reduce irritation”. The number 5 is replaced by 3 in the Hydro 3 Packaging and the Hydro 3 Replacement Packaging;

    an image apparently comparing the effect on the user’s skin of the “Skin Guards”. The image contains two diagrams side-by-side, one depicting the Hydro 3 or Hydro 5 and another involving blades in which the “Skin Guards” appear to be absent;

    the text “FREE YOUR SKIN”;

    the text “SKIN COMFORT SYSTEM”;

    a performance guarantee;

    the text “SHAVING QUESTIONS”, followed by a toll free number and a reference to the www.schick.com.au website; and

    a predominantly ocean blue water background, which also depicts water droplets.

150    The back of the Hydro 5 Packaging and the Hydro 3 Packaging both display an image of the particular razor accompanied by a magnified depiction of part of the razor. The Hydro 5 Packaging contains a clear droplet in this magnified depiction, while the Hydro 3 Packaging does not.

151    The back of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging both contain an image with three panels depicting the operation of a “FLIPTRIMMER”.

The Long-Lasting Hydration Representation

P&G submissions

152    P&G relies on several aspects of the Packaging which in combination, it contends, would lead the reasonable consumer to conclude that the Hydro 3 or Hydro 5 would have a hydrating effect on a user’s skin beyond the shaving process. In summary, P&G submits that:

    The name “Hydro” evokes connotations of water and hydration. Although P&G accepts that in the absence of any claim for hydration effects, there would likely be no issue with the use of the name “Hydro”, it contends that in the context of a claim for a razor system with a hydration feature, the name “Hydro” must be taken into account.

    The prominence of the ‘truly formidable breaking ocean wave’ conveys power and an abundance of water.

    The “Hydrating Gel Reservoir” description used on both the front and the back of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging makes a general claim that the Hydro 5 will have a hydrating effect which is unqualified as to time. The words “Hydrating Gel Reservoir” convey that there is some duration especially when considering that a man’s face is wet during the shaving process, which means that the reasonable consumer would not regard minor hydration during the shaving process as being of significance. That is, the consumer is likely to assume from the words “Hydrating Gel Reservoir” that the duration of the hydration will be significant and meaningful.

    As the “Hydrating Gel Reservoir” claim on the front of the Hydro 5 Packaging and the Hydro 5 Cartridges Packaging is adjacent to the Magnified Hydro 5 Image, the contents of the droplets are depicted as being constituents of the reservoir. The droplets are stated to represent “aloe” and vitamin E, both of which are known moisturisers.

    The Packaging contains a reference to the www.schick.com.au website, which contains the Schick Online Advertisement.

Energizer submissions

153    Energizer says that the use of the name “Hydro” and the use of water imagery are marketing devices intended to attract the relevant consumer’s attention by reference to an event and location unrelated to the shaving process in order to communicate the distinguishing feature of the Hydro 3 and the Hydro 5, that is, the fact that it hydrates. Energizer says that ‘notions of unrelated activity make plain the desire to attract attention’. Energizer submits that the reasonable consumer understands that such marketing imagery is used to attract attention and is not intended to convey a product benefit which travels beyond the primary function of the product. Energizer says that the use of water merely serves to emphasise the “Hydro” product name and make it more memorable. Energizer points out that, in any event, the images displaying an abundance of water are indicative of a transient phenomenon as waves crash and disappear.

154    Energizer also says that the promotional references to the shaving stage, including features such as “Skin Guards” and the “Fliptrimmer” (in the case of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging) emphasise that the effects of the product operate during the shaving process.

Consideration

155    I accept that the reasonable consumer would take the time to examine the claims made by the Packaging, including those on the back, given that:

    the reasonable consumer regards new razor blade cartridges as expensive and is reluctant to change brands due to the “investment” made in the handle of his existing razor;

    the reasonable consumer is prepared to switch brands in response to technological innovations;

    unlike other of the Hydro Materials such as the Daily Telegraph Advertisement, the Zoo Weekly Advertisements and the Television Advertisements, the reasonable consumer has made a conscious decision to examine the Packaging, that is, by picking it up or moving close enough to the Packaging to see it.

156    P&G accepts that Energizer does not make an express hydration claim on the Hydro 3 Packaging or the Hydro 3 Replacement Cartridges Packaging, but relies on the “Hydro” name and the prominence of the wave. In the absence of an express hydration claim, the reasonable consumer would not interpret the name “Hydro 3” and the presence of water images as anything other than the name of a product reinforced by accompanying imagery. In the context of the Hydro 3 Packaging and the Hydro 3 Replacement Cartridges Packaging as a whole, the Long-Lasting Hydration Representation has not been made.

157    I now turn to consider the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging, which contain additional claims to those in the Hydro 3 Packaging and the Hydro 3 Replacement Cartridges Packaging.

158    The front and back of both the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging contain the “Hydrating Gel Reservoir” claim. The reasonable consumer would not necessarily be able to pinpoint the precise meaning of the “Hydrating Gel Reservoir” claim. Although it can be said that the “Hydrating Gel Reservoir” claim, in combination with the Magnified Hydro 5 Image, would undoubtedly convey that the use of the Hydro 5 results in a hydration effect, the text “Hydrating Gel Reservoir” is unclear as to the duration of the hydrating effect. It does not indicate, either expressly or impliedly, whether the hydrating effect is confined to the shaving process or would extend beyond the shaving process. The evidence does not indicate whether, in particular, “Hydrating Gel Reservoir” is a statement that has been used in the razor industry and would be interpreted by the reasonable consumer in a particular way. In my opinion, the Magnified Hydro 5 Image has no additional effect on the consumer’s understanding or appreciation of the duration of the hydrating effect.

159    Where a claim does not expressly indicate or in any way imply a particular duration for the hydrating effect, the claim cannot, of itself, support the allegation that a Long-Lasting Hydration Representation has been made. This applies to the “Hydrating Gel Reservoir” claim.

160    In any event, it is necessary to examine the Hydro 5 Packaging and Hydro 5 Replacement Cartridges Packaging as a whole to determine the representations made. The emphasis on the back of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging is on the shaving process itself. Although the “Hydrating Gel Reservoir” claim is made, albeit in small font, the references to and images of the “Fliptrimmer” and “Skin Guards” tie the effects of the Hydro 5 to the shaving process itself.

161    I give no weight to the reference to the www.schick.com.au website, which contains the Schick Online Advertisement, given:

    its small size;

    the absence of any evidence or submissions as to the likelihood that a person examining the Packaging, for example, in a supermarket, would go to the website;

    my comments on references in the Hydro Materials to other of the Hydro Materials at [123] above; and

    my findings on whether the Schick Online Advertisement makes the Long-Lasting Hydration Representation at [267]-[272] below.

162    By viewing the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging as a whole, the reasonable consumer would not understand the Long-Lasting Hydration Representation to have been made.

The Best Shave Representation

163    The “best shave for your skin” claim is made on a green sticker on the front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging. The form in which the “best shave for your skin” claim is made in these forms of the Packaging gives equal prominence to the words “best shave” and “skin” with the words “for your” given less prominence.

164    I accept, for the reasons set out at [155] above, that the reasonable consumer considering whether to purchase the Hydro 5 and to switch from his present razor would take care to examine the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging to determine whether he should purchase the product.

165    While there is little on the front of the Hydro 5 Packaging and the front of the Hydro 5 Replacement Cartridges Packaging other than the “Hydrating Gel Reservoir” claim and the reference on the Hydro 5 Packaging to the “5 blades with skin guards to reduce irritation”, the back of the Hydro 5 Packaging and the back of the Hydro 5 Replacement Cartridges Packaging are replete with references to the skin, such as “skin comfort”, “Easyglide Blades”, “Skin Guards” and a “Fliptrimmer”. All of these references, P&G contends, emphasise the link between the “best shave for your skin” claim and the benefits of the Hydro 5 to the skin. The strength of the representations is supported, P&G says, by the further statement that the “Schick Hydro is unconditionally guaranteed” and that it will be replaced free of charge if the purchaser is dissatisfied with the product. Thus, P&G submits, the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging make performance claims about skin-related attributes such as hydration, lubrication, skin irritation and nicks and cuts.

166    Energizer points out that the phrases “free your skin” and “5 Easyglide Blades” are each registered Energizer trademarks and as such, Energizer says, is by nature a brand and non-descriptive. Energizer also points to the expression “skin comfort system” and says that “comfort” is a notion incapable of measurement or of providing an amenable point of comparison. If anything, Energizer says, it supports a connotation of puffery.

167    Energizer also says that an assertion that the “Skin Guards” will “reduce irritation” and that the “Hydrating Gel Reservoir” lasts longer than ordinary lubrication strips does not in either case lend itself to quantification. Energizer adds that the longevity of a lubrication strip has nothing to do with the skin but is rather linked to the longevity of the product itself.

168    I accept that, in a general sense, the “best shave for your skin” claim is used as a slogan to attract the consumer’s attention to the Hydro 5. In my view, the consumer would not understand the expression, of itself, as conveying a representation capable of actual assessment and quantification. Consumers are familiar with claims in advertisements that a product is “the best” and, without more, regard such claims as puffery. In the absence of something further, either by way of explicit statement or by inference by reason of context, a claim such as the “best shave for your skin” claim would not be regarded as a statement of fact by the reasonable consumer (in the Jainran sense).

169    Nonetheless, it is necessary to consider how “the best shave for your skin” claim is used in the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging as a whole. It is not repeated within the descriptive text, or otherwise on these forms of the Packaging. The sticker containing the “best shave for your skin” claim is not related in positioning or in terminology to a point of comparison or to factual assertions capable of assessment. It appears on the front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging, whereas the skin-related claims, such as the glide of the blade, reduced irritation and the “Skin Guards” appear predominantly on the back of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging. Further, the skin-related claims refer to general matters that the consumer would take into account as being applicable for most, if not all, razors. The reference to the “Hydrating Gel Reservoir” is stated to be in contrast to “ordinary lubrication strips” but that is the only comparison and it is not given any prominence vis-à-vis the other references to the benefits to the skin. In addition, the skin-related claims made on the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging are in qualitative rather than quantitative terms.

170    The “best shave for your skin” claim, as used in the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging, would not be understood as a statement of fact in the relevant sense. It would not be understood as a statement capable of being proven to be correct or incorrect, or to be taken literally, or to be treated seriously.

171    I now turn to consider whether the “best shave for your skin” claim is a comparative claim and not puffery for that reason.

172    Based solely on the words used, the “best shave for your skin” claim is an absolute and does not make a comparative claim. There is no explicit reference to another product in the claim. The reasonable consumer is used to assertions that something is “the best” and would not see such an assertion, of itself, as making an implicit comparative claim.

173    Taking the whole of the Hydro 5 Packaging and the Hydro 5 Replacement Packaging account, the same conclusion is reached. There is no other explicit or implicit reference to another product in those forms of the Packaging.

174    P&G points to the fact that in the Packaging, the “shaves better than Mach 3” claim and the “best shave for your skin” claim appear in equivalent locations on the Hydro 3 Packaging/Hydro 3 Replacement Cartridges Packaging and the Hydro 5 Packaging/Hydro 5 Replacement Cartridges Packaging respectively. Both claims, it points out, are made prominently using distinctive bright colouring and, in many circumstances, are directly juxtaposed. P&G submits that in this context there is a clear link between the two claims such that if Hydro 3 is asserted to be better than the Mach 3 and the Hydro 5 is asserted to be the best of the razors, the representation is that the Hydro 5 is better than all other razors. That is, it contends, the Packaging effects a tiered claim of comparative superiority in respect of the Hydro 3 and Hydro 5 and therefore this is not a case of mere puffery.

175    Although I accept that the “best shave for your skin” claim and the “shaves better than Mach 3” claim as used in the Packaging would appear on supermarket stands or on point of sale stands alongside one another by virtue of the positioning of the Packaging, I do not accept that this is sufficient for the consumer to convert the non-comparative statement constituting the “best shave for your skin” claim to a comparative statement being associated with and leveraging on the “shaves better than Mach 3” claim. The clear comparison being made in the “shaves better than Mach 3” claim is in contrast to the absence of a direct comparison in the “best shave for your skin” claim and serves to emphasise that the use of the more general “best shave for your skin” claim in the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging is as a slogan for the Hydro 5, rather than the comparative claim made for the Hydro 3.

176    The “best shave for your skin” claim, as it appears in the relevant forms of the Packaging, is mere puffery. The Packaging does not make the Best Shave Representation.

The Display

177    Various relevant aspects of the Display are as follows:

    A product display panel with the Hydro 5 Packaging and the Hydro 3 Packaging aligned vertically. This is annexure E.

    A panel which includes the text “Schick HYDRO 5” accompanied by the text “BEST SHAVE FOR YOUR SKIN”, which is in the same format as it appears in the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging. This is adjacent to the text “Schick HYDRO 3” accompanied by the text “SHAVES BETTER THAN MACH 3”, which is in the same format as it appears in the Hydro 3 Packaging and the Hydro 3 Replacement Cartridges Packaging. I will refer to this panel as the First Panel. This is annexure F.

    A panel coloured in blue and with water ripple imagery which includes, in descending order: an enlarged image of a Hydro 5 with part of that razor magnified to depict a clear droplet , below which is the text “HYDRATING GEL RESERVOIR”; an image displaying the effect of “Skin Guards” below which is the text “EASY GLIDE BLADES WITH SKIN GUARDS”; an image of the Hydro 5 and a thumb, below which is the text “FLIP TRIMMER” and, in smaller text , “ONLY AVAILABLE ON HYDRO 5”. I will refer to this panel as the Second Panel. This is annexure G.

    A panel which includes, in descending order: an identification that the product is the “Schick HYDRO”; the text “DISCOVER UNEXPECTED HYDRATION”, whereby “unexpected” is in larger font; imagery of a breaking ocean wave; a depiction of a Hydro 5 submerged with water along with water ripple imagery; the Magnified Hydro 5 Image, at the bottom of which is the text “HYDRATING GEL RESERVOIR”; an image displaying the effect of “Skin Guards”, at the bottom of which is the text “EASY GLIDE BLADES WITH SKIN GUARDS”; an image of the Hydro 5 and a thumb, at the bottom of which is the text “FLIP TRIMMER” and, in smaller text, “ONLY AVAILABLE ON HYDRO 5”; and the text “FREE YOUR SKIN”. I will refer to this as the Third Panel. This is annexure H.

    A product display panel which includes: the identification of the “Schick HYDRO” brand, below which is the text “DISCOVER UNEXPECTED HYDRATION” whereby “unexpected” is in larger font; a breaking ocean wave forming part of the background to these statements; the written text “FREE YOUR SKIN”; the Hydro 3 Packaging and the Hydro 5 Packaging, below which is a horizontal panel which includes the text “Schick HYDRO 5”, “BEST SHAVE FOR YOUR SKIN”, “Schick HYDRO 3” and “SHAVES BETTER THAN MACH 3” all adjacent to one another (this is repeated several times in the product display panel). I will refer to this as the Fourth Panel. This is annexure I.

The Long-Lasting Hydration Representation

P&G submissions

178    P&G says that it is clear that there is an immediate connection between the Display and the Hydro 3 Packaging and Hydro 5 Packaging, given that the Hydro 3 Packaging and Hydro 5 Packaging are physically present in the Display.

179    P&G points out that the Display contains the “Hydrating Gel Reservoir” claim without distinguishing between the Hydro 3 and the Hydro 5. P&G also places emphasis on the depiction of breaking waves and jets of water.

180    P&G also points to the “discover unexpected hydration” claim made in the Display, which it contends is likely to convey to the consumer that the user of the razor will experience hydration of the face at times when the user would not expect hydration, which must be at times outside and beyond the ‘already water rich environment of shaving’.

Energizer submissions

181    Energizer repeats its submissions about the use of the word “Hydro”, the effect of the water imagery and the effect of the Hydro 3 Packaging and the Hydro 5 Packaging, as outlined at [153] above.

182    Energizer says that the use of the words “discover unexpected hydration” does not convey the Long-Lasting Hydration Representation, as “unexpected” does not equate to “long-lasting”. The aspect of the Hydro Products which is unexpected is, Energizer contends, that the Hydro Products provide hydration during the shaving process. Energizer also points to evidence of the placement of the Hydro Products in supermarkets alongside shaving products rather than moisturisers, which are considered to have a longer-lasting effect.

Consideration

183    The First Panel is relevant to the Best Shave Representation only.

184    The Second Panel and the Third Panel contain the “Hydrating Gel Reservoir” claim. As stated at [158] above, the duration of the hydrating effect based on this claim is unclear. In the Second Panel and the Third Panel, the “Hydrating Gel Reservoir” claim is once again surrounded by images and references to “Skin Guards” and the “Flip Trimmer”. As stated at [160] above, these images and text link the hydrating effects to the shaving process.

185    However, in addition to similar images and text to those in the Second Panel, the Third Panel also includes, as its dominant feature, an image of the Hydro 5 submerged in water, above which is the statement “DISCOVER UNEXPECTED HYDRATION”, with emphasis on “unexpected”. P&G also relies on that statement in the Fourth Panel.

186    P&G’s approach is, in effect, that the reasonable consumer will interpret the statement “discover unexpected hydration” by considering it to refer to forms of hydration other than those that he would “expect”. That is, he would interpret it as referring to hydration outside the water-based environment of the shaving process. This form of analysis is too literal and fails to take into account the context in which the reasonable consumer would view the Display and the fact that the reasonable consumer is familiar with exaggerated claims being made in relation to shaving products.

187    The statement “discover unexpected hydration” clearly conveys that the reasonable consumer can expect the Hydro 3 and Hydro 5 to have hydrating effects. However, as with the “Hydrating Gel Reservoir” claim, it does not indicate, either expressly or impliedly, whether the hydrating effect is confined to the shaving process or extends beyond the shaving process. As I stated above at [159], where a claim does not expressly indicate or in any way imply a particular duration of the hydrating effect, the claim cannot, of itself, support the allegation that a Long-Lasting Hydration Representation has been made.

188    The Display does not make the Long-Lasting Hydration Representation.

The Best Shave Representation

189    P&G relies on the fact that the “best shave for your skin” claim and the “shaves better than Mach 3” claim appear alongside one another in the First Panel and the Fourth Panel to contend that a claim of comparative superiority is made. For the reasons outlined at [175], this is not the case.

190    The “best shave for your skin” claim, as it appears in the Display, is mere puffery. The Display does not make the Best Shave Representation.

The Daily Telegraph Advertisement

191    The Daily Telegraph Advertisement is annexure J. It relevantly contains:

    at the top of the advertisement, the text “Introducing NEW Schick Hydro. Give your face a blast of hydration”; and

    an image displaying an alignment, from left to right and in decreasing order of size, of the front of the Hydro 5 Packaging (containing the “BEST SHAVE FOR YOUR SKIN” sticker), a Schick Hydro shaving gel, the front of the Hydro 3 Packaging (containing the “SHAVES BETTER THAN MACH 3” sticker) and another Schick Hydro shaving gel.

The Long-Lasting Hydration Representation

P&G submissions

192    P&G relies on the fact that the Daily Telegraph Advertisement depicts the front of the Hydro 5 Packaging and the Hydro 3 Packaging and the statements therein. P&G says that as the Daily Telegraph Advertisement features in a newspaper, the text written on the Hydro 5 Packaging and the Hydro 3 Packaging will be visible to the reader.

193    P&G also says that the statement “give your face a blast of hydration” conveys the Long-Lasting Hydration Representation on the basis that although a blast (in the sense synonymous with “explosion”) is likely to occur very briefly, its consequences are unlikely to be transitory or to disappear instantaneously; that is, a blast is big, potent and the very purpose of it is to have continuing effects.

Energizer submissions

194    Energizer relies on its submissions on the effect of the front of the Hydro 5 Packaging and the Hydro 3 Packaging.

195    Further, Energizer says that the ordinary meaning of “blast” suggests suddenness and short duration. Energizer gives the example of a “blast” of a horn.

Consideration

196    Even though the image of the front of the Hydro 5 Packaging and the front of the Hydro 3 Packaging would, given the size of a newspaper, likely be visible to a reader, this is of little import because, as I found above, the front of the Hydro 5 Packaging and the front of the Hydro 3 Packaging do not make the Long-Lasting Hydration Representation.

197    If the reasonable consumer were to take any message at all concerning the duration of the hydration effect from the statement “give your face a blast of hydration”, it would be that the hydration effect is confined to the shaving process. Equating the word “blast” with the word “explosion” and then stating that an explosion has long-lasting consequences, as P&G seeks to do, ignores the context in which the word is used. The word “blast”, in this context, is shortly followed by the words “of hydration”. It is not being used to denote something violent and dangerous. It is being used in reference to something that is positive, sudden and short-term.

198    The Daily Telegraph Advertisement does not make the Long-Lasting Hydration Representation.

The Best Shave Representation

199    In the Daily Telegraph Advertisement, the “best shave for your skin” claim appears by way of the image displaying the front of the Hydro 5 Packaging, which contains a sticker with that claim.

200    Given my conclusion above that the Hydro 5 Packaging does not make the Best Shave Representation and noting that there is nothing further in the Daily Telegraph Advertisement which supports the making of it, it is clear that the “best shave for your skin” claim, as it appears in the Daily Telegraph Advertisement, is mere puffery. The Daily Telegraph Advertisement does not make the Best Shave Representation.

The Zoo Weekly Advertisements

201    The Zoo Weekly Advertisements relate to the Hydro 5 only.

202    The First Zoo Weekly Advertisement is annexure K.

203    The main image of the First Zoo Weekly Advertisement depicts a boxer being hit on the side of the head by the arm of another boxer. At the point of contact the boxing glove disintegrates into a cascade of water. The text “Full contact hydration” appears adjacent to this image.

204    Above this image of the boxer, in small text, is a reference to the Facebook Page.

205    Below the image of the boxer is a series of images and text. In order from left to right, this contains:

    the text “The best shave for your skin”;

    an image depicting a droplet of water above a razor;

    the text “Water-activated gel hydrates your skin as you shave”;

    an image depicting blades in contact with skin;

    the text “5 blades with skin guards smooth your skin to reduce irritation”; and

    an image of the Hydro 5, above which the razor is identified as “Schick HYDRO 5” and below which is the text “FREE YOUR SKIN”.

206    The Second Zoo Weekly Advertisement is annexure L.

207    The main image of the Second Zoo Weekly Advertisement depicts a woman wearing bra and underwear only engaging in a “pillow fight” with a man wearing underwear only. The image displays part of the pillow held by the woman disintegrating into a cascade of water upon making contact with the man. Above this image is the written text “Hydration when you least expect it”, above which (in much smaller font) is a reference to the Facebook Page.

208    Below the “pillow fight” image is a series of images and text that is relevantly identical to those appearing below the boxer image in the First Zoo Weekly Advertisement (see [205] above).

The Long-Lasting Hydration Representation

P&G submissions

209    P&G says that neither of the scenes depicted in the Zoo Weekly Advertisements, that is, a boxing match in the First Zoo Weekly Advertisement and a bedroom pillow fight in the Second Zoo Weekly Advertisement, is in any way related to the act of shaving; both scenes would occur well after the shaving process.

210    P&G says that the “full contact hydration” claim in the First Zoo Weekly Advertisement needs to be interpreted in the context of a boxer being hit on the side of the head with a boxing glove that turns into a cascade of water. “Full contact”, P&G says, is a general sporting reference to games where the rules permit relatively extreme physical contact between participants; the very objective of the player responsible for full contact is for the act to have a relatively extreme and stunning effect which is intended to have the lasting consequence of reducing the opponent’s stamina and ability to pursue the contest.

211    P&G submits that the use of the claim “hydration when you least expect it” in the Second Zoo Weekly Advertisement is likely to convey to the consumer that the use of the Hydro 5 will result in hydration at times when the user would not expect hydration, which, given that the user expects to be hydrated during the shaving process as his skin is wet, would be at times outside the shaving process.

212    P&G points to the statement “hydrates your skin as you shave”, which, it contends, would refer to the period during which the hydration effect is achieved, rather than the period for which it lasts; that is, the consumer would understand from this claim that the hydration builds up during the shaving process, not that it disappears by the end of the shaving process.

213    P&G adds that the reference to the Facebook Page should not be regarded as irrelevant.

Energizer submissions

214    Energizer contends that the statement “hydrates your skin as you shave” is temporal and is tied to the shaving period. Energizer says that the words make it clear that the act of hydration takes place while the user is shaving and are not referring to the delivery of the hydration. Further, Energizer points out, the statement is made in a context whereby consumers understand that the shaving regime is a multi-stage process. This, Energizer submits, means that consumers would understand from the statement “hydrates your skin as you shave” that the hydration effect only occurs during shaving.

215    Energizer says that the bursts of water in the boxing ring and the bedroom are a creative and engaging way of attracting the interest of men to the Hydro Products and assist in emphasising the product name. Energizer points out that the hypothetical reasonable consumer is familiar with this form of marketing. These images, Energizer submits, cannot seriously be suggested to convey a message that use of the Hydro Products will result in extended hydration of the skin such that a user’s skin would be hydrated in the context of a boxing match or a bedroom scene.

Consideration

216    The claims “full contact hydration” and “hydration when you least expect it” fall into the same category as “Hydrating Gel Reservoir” and “discover unexpected hydration”. That is, taken alone, although indicating that a hydrating effect occurs, they do not indicate one way or another whether that hydrating effect is confined to the shaving process or would extend beyond the shaving process.

217    These claims are, however, adjacent to images of a boxing match (“full contact hydration”) and a bedroom pillow fight (“hydration when you least expect it”). While the reasonable consumer would appreciate that exaggeration is commonly used in the advertising of men’s razor products, these images imply that the men in the Zoo Weekly Advertisements are still experiencing a hydrating effect in the post-shaving environments depicted. This is not only because the images display scenes taking place outside the shaving process; it is also because these images contain a cascade of water on the face of the men in these scenes.

218    Although the text and images at the bottom of the Zoo Weekly Advertisements is small in comparison to the main image and text of the Zoo Weekly Advertisements, the reasonable consumer would look at the text and images to understand the nature of the product given the relative paucity of other text in the Zoo Weekly Advertisements.

219    The text contains the “water-activated gel hydrates your skin as you shave” claim. As with the “Hydrating Gel Reservoir”, “discover unexpected hydration”, “full contact hydration” and “hydration when you least expect it” claims, it does not provide an express indication as to duration. The reasonable consumer would understand the hydration to be effected during the shaving process, “as you shave”. However, there is no explicit endpoint for the presence of the hydrating effect. In the context of the accompanying images, this leads to the implication that the hydrating effect continues beyond the shaving process.

220    This does not necessarily mean that the Hydro Materials that use the “hydrates your skin as you shave” claim or variants of it make the Long-Lasting Hydration Representation. The claim needs to be interpreted as part of the each of the relevant Hydro Materials as a whole.

221    In the Zoo Weekly Advertisements, the combination of:

    the images of the bedroom pillow fight/the boxing match;

    the claims of either “full contact hydration” or “hydration when you least expect it”;

    the adjacent images of a man either boxing or engaging in a bedroom pillow fight having his face covered in a cascade of water; and

    the “hydrates your skin as you shave” claim;

means that there is a real or not remote chance that the Zoo Weekly Advertisement would be understood by the reasonable consumer as making the Long-Lasting Hydration Representation. Although the statement “5 blades with skin guards smooth your skin to reduce irritation” refers to the shaving process, it does not, in the context of the other claims made in the Zoo Weekly Advertisements, alter the conclusion that, overall, the Zoo Weekly Advertisements represent that the hydration effect of the Hydro 5 extends beyond the shaving process.

222    For completeness, I should point out that I have not given any weight to the reference to the Facebook Page at the top of each of the Zoo Weekly Advertisements in view of its very small size, my comments at [123] above and my findings on whether the Facebook Page makes the Long-Lasting Hydration Representation at [282]-[287] below.

223    Energizer contravenes ss 18(1) and 29(1)(g) by making the Long-Lasting Hydration Representation in the Zoo Weekly Advertisements.

The Best Shave Representation

224    The “best shave for your skin” claim appears at the bottom of the Zoo Weekly Advertisements. It is not in the same form as it appears on the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging (the green sticker) but rather is in ordinary writing and is bolded. The “best shave for your skin” claim is associated with two pictures, one of a razor with clear droplets and the other of the five blades, and words which include reference to the hydration of the skin, reduced irritation and the claim “free your skin”.

225    I have already considered the reasonable consumer’s general understanding of the “best shave for your skin” claim above at [168] and [172], which is to the effect that the claim would not, of itself, be regarded as a statement of fact or as a comparative claim. In the context of the Zoo Weekly Advertisements as a whole, there is nothing to suggest that this understanding would be displaced. There is no factual assertion in the Zoo Weekly Advertisements linked to the claim. There is no comparison made.

226    In neither of the Zoo Weekly Advertisements would the “best shave for your skin” claim be seen as other than a puff. The Zoo Weekly Advertisements do not make the Best Shave Representation.

The Schick Online Advertisement

227    The Schick Online Advertisement contains seven relevant pages.

228    The home page is annexure M (the First Home Page). It relevantly contains:

    an image of a man and woman at the beach;

    on the left-hand side, denoting “MENS”, the statement “Stay Hydrated to WIN”, in which the word “win” is in larger font. This is in the context of a prize being offered. An image displaying the front of the Hydro 5 Replacement Cartridges Packaging and the Hydro 3 Replacement Cartridges Packaging is present. After a short period of time, the left-hand side of the First Home Page is replaced with an image of the Hydro 5, the label “Schick HYDRO 5” and the text “Experience the best shave for your skin”; and

    on the right-hand side, denoting “WOMENS”, a passage of text including the statement “Feel gorgeous all year round”.

229    If the viewer selects “MENS” on the opening page, another page is loaded (the Second Home Page). This is annexure N. The Second Home Page relevantly contains:

    the Magnified Hydro 5 Image;

    the Magnified Hydro 3 Image;

    the written text “INSTANT HYDRATION”; and

    a link to “PLAY TVC”.

230    The Second Home Page automatically changes to another page (the Third Home Page), which is annexure O. This relevantly contains a link at the bottom of the page to “PLAY TVC” as well as a panel with a background depicting droplets of water, which includes, from left to right:

    an image of the front of the Hydro 5 Packaging;

    an image of a Schick Hydro shaving gel;

    the written text “BEST SHAVE FOR YOUR SKIN” with the words “for your” in smaller text, below which is an image of the front of the Hydro 5 Replacement Cartridges Packaging;

    an image accompanying the text “FLIP TRIMMER”;

    an image accompanying the text “EASYGLIDE BLADES WITH SKIN GUARDS”;

    the Magnified Hydro 5 Image, accompanied by the text “HYDRATING GEL RESERVOIR”; and

    the invitation to “CLICK FOR MORE”.

231    After some seconds, drops appear at and move from the sides of the Third Home Page.

232    If the viewer selects “CLICK FOR MORE” on the Third Home Page, he is taken to another page entitled “Overview” (the First Hydro 5 Page), which is annexure P. This contains, from left to right, a panel (with a background featuring water droplets) that relevantly consists of:

    a paragraph of text which relevantly states that the Hydro 5’s “exclusive Hydrating Gel Reservoir releases water-activated gel that hydrates skin as you shave, and our 5 Easy Glide Blades contain built-in Skin Guards that act to smooth your skin as you shave and reduce irritation”;

    an image of the front of the Hydro 5 Packaging;

    an image of a Schick Hydro shaving gel;

    the written text “BEST SHAVE FOR YOUR SKIN” (with the words “for your” in smaller text), below which is the front of the Hydro 5 Replacement Cartridges Packaging; and

    an image of a man partaking in a water sport activity, above which is the word “NEW!”.

233    If the viewer selects “Features” on the First Hydro 5 Page, he is taken to another page entitled “Features” (the Second Hydro 5 Page), which is annexure Q. It includes a panel (with a background featuring water droplets) that relevantly contains:

    A bolded headline stating “Revolutionary new technology puts skincare at the heart of shaving” (emphasis added).

    Three paragraphs of written text with the headings “Hydrating Gel Reservoir”, “World First, 5 EasyGlide Blades with Skin Guards” and “Flip Trimmer” respectively. The first of these paragraphs relevantly includes the claim “Hydrating Gel Reservoir: The water activated gel hydrates the skin as you shave and lasts up to twice as long as other ordinary lubricating strips”.

    an image accompanying the text “FLIP TRIMMER”;

    an image accompanying the text “EASYGLIDE BLADES WITH SKIN GUARDS”;

    the Magnified Hydro 5 Image, accompanied by the text “HYDRATING GEL RESERVOIR”; and

    an image of the Hydro 5 submerged in water.

234    If the viewer does not select anything upon viewing the Third Home Page, that page automatically changes to another page (the Fourth Home Page), which is annexure R. This relevantly contains a link at the bottom of the page labelled “PLAY TVC”, as well as a panel with a background depicting droplets of water which includes, from left to right:

    an image of the front of the Hydro 3 Packaging;

    an image of a Schick Hydro shaving gel;

    the written text “SHAVES BETTER THAN MACH 3” with the word “than” in smaller text, below which is the front of the Hydro 3 Replacement Cartridges Packaging;

    the Magnified Hydro 3 Image accompanied by the text “LUBRICATING GEL RESERVOIR”; and

    an image accompanying the text “EASYGLIDE BLADES WITH SKIN GUARDS”; and

    the invitation to “CLICK FOR MORE”.

235    After some seconds, drops appear at and move from the sides of the Fourth Home Page.

236    If the viewer selects “CLICK FOR MORE” on the Fourth Home Page, they are taken to another page entitled “Overview” (the First Hydro 3 Page), which is annexure S. This contains a panel with a background featuring water droplets which relevantly includes:

    a paragraph of text that relevantly includes the statement “The built-in Lubricating Gel Reservoir releases a water activated gel that hydrates your skin as you shave”;

    an image of the front of the Hydro 3 Packaging;

    an image of a Schick Hydro shaving gel; and

    the written text “SHAVES BETTER THAN MACH 3” with the word “than” in smaller text, below which is the front of the Hydro 3 Replacement Cartridges Packaging.

237    If the viewer selects “Features” on the First Hydro 3 Page, they are taken to another page entitled “Features” (the Second Hydro 3 Page), which is annexure T. This includes a panel (with a background featuring water droplets) that relevantly contains:

    A heading stating “Revolutionary new technology puts skincare at the heart of shaving”.

    Two paragraphs of text, one of which contains the statement “Lubricating Gel Reservoir: The water gel hydrates the skin as you shave and lasts up to twice as long as other lubricating strips”;

    an image accompanying the text “EASYGLIDE BLADES WITH SKIN GUARDS”;

    an image accompanying the text “LUBRICATING GEL RESERVOIR”; and

    an image of the Hydro 3 submerged in water.

The Long-Lasting Hydration Representation

P&G submissions

238    P&G points to:

    The “stay hydrated” claim on the First Home Page which, it says, conveys some level of continuation of the hydration effect, especially when positioned alongside an image of a man and woman at the beach, which is entirely unconnected with the act of shaving.

    The “instant hydration” claim on the Second Home Page, which P&G contends, does not convey that the effect lasts an instant or is otherwise transient, on the basis that no consumer would want to be hydrated for an instant. When used in relation to a process like hydration, the word “instant”, P&G says, conveys that the effect is achieved immediately. P&G emphasises that the droplets on each side of the “instant hydration” text move together to create a cascading splash of water.

    Variants of the “hydrates your skin as you shave” claim being made on the First Hydro 5 Page, the Second Hydro 5 Page, the First Hydro 3 Page and the Second Hydro 3 Page. P&G repeats its submissions at [212] above on the effect of these claims.

    The “Hydrating Gel Reservoir” claim on the First Hydro 5 Page and the Second Hydro 5 Page, and repeats its submissions at [152] above.

    The statement “puts skincare at the heart of shaving” on both the Second Hydro 5 Page and the Second Hydro 3 Page, which, P&G contends, bearing in mind the context of skin care that is beneficial, is a claim that conveys that the hydration effect is not ephemeral.

    The water splashing and receding throughout the Schick Online Advertisement, which is an ‘eye-catching’ aspect.

Energizer submissions

239    Energizer submits that the claim “instant hydration” refers to the suddenness of the hydration effect, as the plain ordinary meaning of “instant” is short-lived by definition.

240    Energizer repeats its earlier submission on the “hydrates your skin as you shave” claim and variants of it (see [214] above).

241    Energizer says that the emphasis on features such as “Skin Guards” and the “Flip Trimmer”, both of which are part of the shaving process, indicates that any hydrating effect would not be understood as being distinct from the shaving process.

Consideration

242    The claims relied upon by P&G are contained in multiple pages of the Schick Online Advertisement.

243    As stated earlier in regard to the Packaging, unlike other of the Hydro Materials such as the Daily Telegraph Advertisement, the Zoo Weekly Advertisements and the Television Advertisements, the reasonable consumer would have made a conscious decision to examine this form of the Hydro Material. That is, the reasonable consumer would have made the decision to visit the website in order to obtain information. Therefore, I accept that the reasonable consumer who went to the Schick Online Advertisement would take the time to read its content, albeit not necessarily to study it or to read every detail or word.

244    In considering the representation made to the reasonable consumer by the Schick Online Advertisement, the claims made should not be considered in isolation. The claims are to be considered in the context of the Schick Online Advertisement as a whole. However, it must be borne in mind that the Schick Online Advertisement consists of more images and text than do other of the Hydro Materials considered thus far and thereby contains more information for the viewer to consider. As the consumer clicks through the pages, the eye would, in general, be drawn to those parts emphasised by headings and pictures.

245    P&G relies on the “stay hydrated” claim on the First Home Page, particularly as it is positioned alongside the image of the man and woman at the beach which, it says, is unconnected to the act of shaving. While it may be accepted that the words “stay hydrated” do not confine the duration of any hydration effect, the words “stay hydrated” are comparatively small (the word “win” is both larger and in upper case) and are not expressly linked on the First Home Page to any attributes of the Hydro Products. Given the small font size and the lack of emphasis given to the “stay hydrated” claim on the First Home Page, it is unlikely to remain in the mind of the reasonable consumer as he navigates through the remainder of the Schick Online Advertisement.

246    Further, contrary to P&G’s emphasis on the fact that the image of the man and woman at the beach depicts an environment outside the shaving process, this image would be understood by the reasonable consumer to provide visual support for other statements on the First Home Page, such as “the ultimate summer trip” and, in connection with Schick women’s products, “feel gorgeous all year round”.

247    P&G also relies on the “instant hydration” claim on the Second Home Page. This falls into a similar category as the “Hydrating Gel Reservoir” claim. “Instant hydration” does not indicate, either expressly or impliedly, whether the hydrating effect is confined to the shaving process or would extend beyond the shaving process. As stated above, where a claim does not expressly indicate or in any way imply a particular duration for the hydrating effect, the claim cannot, of itself, support the allegation that a Long-Lasting Hydration Representation has been made. The droplets of water that appear on the Second Home Page do not change the effect of the “instant hydration” claim.

248    The First Hydro 5 Page, the Second Hydro 5 Page, the First Hydro 3 Page and the Second Hydro 3 Page all contain variants of the “hydrates your skin as you shave” claim, with slightly different wording being used for this claim in some of those pages. I have considered how the reasonable consumer would interpret this claim at [219]-[220] above.

249    However, this claim needs to be interpreted in the context that the Third Home Page, First Hydro 5 Page and Second Hydro 5 Page all place emphasis on features of the Hydro 5 that are part of the shaving process, such as the “Flip Trimmer” and “Skin Guards”, while the Fourth Home Page, the First Hydro 3 Page and the Second Hydro 3 Page emphasise the “Skin Guards” feature of the Hydro 3. These references tie the hydrating effects of the Hydro 5 and Hydro 3 to the shaving process. The emphasis on the “Skin Guards” and “Flip Trimmer” features, by way of both text and images, is more noticeable and engaging to the viewer than the variants of the “hydrates your skin as you shave” claims. Further, the First Hydro 3 Page and the Second Hydro 3 Page use the “hydrates your skin as you shave” claim in the context of a “Lubricating Gel Reservoir”, not a “Hydrating Gel Reservoir”.

250    When considered as a whole, the Schick Online Advertisement does not make the Long-Lasting Hydration Representation.

The Best Shave Representation

251    The “best shave for your skin” claim appears:

    on the Home Page, once the left-hand side changes from the words and images depicting the “summer trip” to the words and images depicting the Hydro 5. Apart from the word “new”, it is the only claim made in relation to the Hydro 5 on the Home Page.

    on the Third Home Page, prominently and separately from images of the front of the Hydro 5 Packaging and Hydro 5 Replacement Cartridges Packaging and adjacent to pictures of and references to the “Flip Trimmer”, “Easyglide Blades with Skin Guards” and “Hydrating Gel Reservoir”.

    on the First Hydro 5 Page, prominently and separately from the adjacent images of the front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging. The text on the First Hydro 5 Page states:

You’re a man. You’ve got facial hair. And most likely, that means you’ve used a lot of razors. But never one that was perfect. Until now. The Schick Hydro 5 razor is so advanced that it changes the whole shaving experience. Its exclusive hydrating gel reservoir releases water-activated gel that hydrates skin as you shave, and our 5 Easy Glide Blades contain built-in skin guards that act to smooth your skin as you shave and reduce irritation.

[emphasis added]

    on the images of the front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging on the Third Home Page and the First Hydro 5 Page, although it is difficult to decipher the claim in these images.

252    The Second Hydro 5 Page, which is accessed from the First Hydro 5 Page by clicking on the “Features” tab, has a heading in bold, “Revolutionary new technology puts skin care at the heart of shaving”, and has pictures of more text concerning the “Hydrating Gel Reservoir”, “Flip Trimmer” and the “EasyGlide Blades with Skin Guards”. The Second Hydro 5 Page does not, independently, make the “best shave for your skin” claim.

The submissions

253    P&G relies upon the reference to technological advances on the Second Hydro 5 Page as a clear indication that the representation is not just puffery but an assertion of fact.

254    Energizer emphasises the ‘disconnect’ between the “best shave for your skin” claim, as it appears in the Schick Online Advertisement, and the rest of the information which specifically concerns the skin-related claims. It emphasises that there is no evidence, and no marketing expert, to support the case asserted by P&G. Energizer says that Mr De Beer was not cross-examined on whether the promotional material such as the “best shave for your skin” claim was designed to connect with the skin-related claims. Again, Energizer points out that some of the expressions relied upon are registered trademarks.

255    As noted above, the statement about the “revolutionary new technology” appears on a separate page of the Schick Online Advertisement from the use of the “best shave for your skin” claim. This, Energizer says, emphasises that Energizer does not seek to draw a link between the puffery of the “best shave for your skin” claim and the newness of the Hydro 5 in comparison to other products. Energizer submits that the “revolutionary new technology” statement on the Second Hydro 5 Page attracts the customer’s attention to the innovative nature of the Hydro 5, in keeping with the general theme of the Hydro 5 promotional materials, which is to emphasise the hydrating feature. It does not, Energizer says, provide a point of comparison with other products. Further, an assertion that something is new does not, Energizer contends, convey to a reader that it is better than another product.

Consideration

256    A consumer who goes to the Schick Online Advertisement is invited to click through the Third Home Page, the First Hydro 5 Page and the Second Hydro 5 Page, all of which are clearly intended to be read together. In these pages, the consumer is presented with the bolded heading referring to “revolutionary new technology”, the reference to the Hydro 5 being “advanced” and repeated emphasis of the “best shave for your skin” claim. In context, the representation is that the new technology of the Hydro 5 enhances the benefits to the skin from shaving and results in the “best shave for your skin”. The fact that the “best shave for your skin” claim is not present on the Second Hydro 5 Page, which is where the “revolutionary new technology” heading is present, does not prevent it from remaining in the mind of the consumer when he views this page. Indeed, although the Second Hydro 5 Page does not contain the “best shave for your skin” claim, it largely contains the same images pertaining to the features of the Hydro 5 that appear on the Third Home Page.

257    In my view, in the context of the Schick Online Advertisement as a whole and notwithstanding the meaning to be attributed to the words in isolation (see [168] and [172] above), the “best shave for your skin” claim would be taken literally and treated seriously by the reasonable consumer, even if it is not in highly precise terms (Jainran at [117]). Although the features displayed on the relevant pages are not described in quantitative terms, they are classified on the Second Hydro 5 Page as being “revolutionary new technology”, which, in the context of the “best shave for your skin” claim made on the previous pages, means that the Schick Online Advertisement puts forward a factual basis in support of the claim made. Further, the heading, in bold, “revolutionary new technology puts skincare at the heart of shaving” makes reference to other wet shave razors by implying that these razors have not placed the same degree of emphasis on skin care as the Hydro 5, thereby representing to the reasonable consumer, in combination with the “best shave for your skin” claim, that the Hydro 5 will lead to the best shave for the user’s skin in comparison with other wet shave razors. I appreciate that the same heading “revolutionary new technology puts skincare at the heart of shaving” appears in the Second Hydro 3 Page and that this could be said to equate the Hydro 3 and Hydro 5 so that the factual assertion of new technology is not limited to the Hydro 5. However, in my view, the reasonable consumer, even if he went past the pages of the Schick Online Advertisement displaying the Hydro 5, would not appreciate the distinction between the assertion of new technology and the comparison between the Hydro 3 and the Hydro 5. The reasonable consumer would derive from the Schick Online Advertisement as a whole that the Hydro Products represent new technology, which underlies the “best shave for your skin” claim for the Hydro 5.

258    The “best shave for your skin” claim is not mere puffery in the context of the Schick Online Advertisement as a whole. The Schick Online Advertisement makes the Best Shave Representation.

The Hydro Online Advertisement

259    The home page of the Hydro Online Advertisement (the Opening Page), which is annexure U, has droplets of water in the background. The Opening Page relevantly contains:

    the statement “IT’S LIKE A BLAST OF HYDRATION TO YOUR FACE” above an image of the Hydro 3 and the Hydro 5;

    an invitation to “HYDRATE YOUR MATE” through a hyperlink to the Facebook Page; and

    a series of tabs including “HOME”, “PRODUCTS”, “FAQ”, “GROOMING” and “VIDEOS”, alongside an image of a razor and the text “FREE YOUR SKIN”.

260    If the viewer selects the “PRODUCTS” tab on the Opening Page (or from any of the other pages), he is taken to another page with a blue background featuring water droplets which, under the word “SHAVE”, contains, from left to right and in descending order of size, an image of the front of each of the forms of the Packaging (the Products Page). This is annexure V.

261    If the viewer selects the “FAQ” tab on the Opening Page (or from any of the other pages), he is taken to a page with a blue background, water droplets and images of a swimmer, a surfer and a man relaxing, which contains the header “FREQUENTLY ASKED QUESTIONS ABOUT HYDRO” and a series of questions (the FAQ Page). This is annexure W. The viewer can see the answers to the questions by clicking on a green box entitled “ANSWER” beneath each of the questions. The relevant questions and answers are:

What is Schick Hydro?

Hydro is an integrated shaving system that puts skin care at the heart of shaving and hydrates your skin while you shave with revolutionary features to help deliver a close, comfortable shave. Hydro is available in 3 or 5 blades; both have a hydrating gel reservoir…

What are the benefits of the hydrating gel reservoir?

The lubrication provides superior moisturisation which provides a comfortable shave and helps reduce irritation with longer lasting lubrication than ordinary strips…

* Lasts up to 2x as long as ordinary lubrication strips

* It offers effortless glide & hydration as you shave…

262    If the viewer selects the “Grooming” tab on the Opening Page (or from any of the other pages), they are taken to a page entitled “GROOMING ADVICE”, which has a blue background featuring water droplets and the subheader “Dr John Sullivan has shared his top 5 grooming tips” (the Grooming Advice Page). This is annexure X. There is a series of text on this page, including the statement that “the benefits of using Schick Hydro have been hailed by skin experts for its focus on full and proper skin care”, a quote from Dr Sullivan and his answer to various questions. Relevantly, this includes the following question and answer:

What should I shave with?

To provide moisture from start to finish, avoid soap suds when shaving, instead use a well formulated shaving gel such as Schick Hydro. Shave with Shick Hydro Razor which has a hydrating gel reservoir with advanced lubrication.

263    If the viewer selects the “Videos” tab on the Opening Page (or from any of the other pages), they are taken to a page from which a video produced by or on behalf of Energizer can be viewed. This is annexure Y.

The Long-Lasting Hydration Representation

P&G submissions

264    P&G relies on:

    The claim “it’s like a blast of hydration to your face” on the Opening Page. In this respect, P&G repeats its earlier submissions on a variant of this claim at [193] above.

    The link to the Facebook Page on the Opening Page, which, P&G submits, provides an instantaneous means of connection, unlike the references in, for example, the Zoo Weekly Advertisements.

    The use of the “Hydrating Gel Reservoir” claim, which, in response to the question “What is Schick Hydro?” on the FAQ Page, is said to apply to both the Hydro 3 and the Hydro 5.

    Other answers provided on the FAQ Page, which include statements to the effect that the Schick Hydro “hydrates your skin while you shave” and that the benefits of the hydrating gel reservoir are that it provides “hydration as you shave”. P&G does not distinguish between the statements “hydrates your skin while you shave” and “hydrates as you shave” and relies on its earlier submissions on the claim “hydrates your skin as you shave” at [212] in this respect. However, P&G also emphasises that the statement “hydrates your skin while you shave” on the FAQ Page is made in the context of putting “skincare at the heart of shaving”.

    The statement on the FAQ Page that a benefit of the “Hydrating Gel Reservoir” is that “the lubrication provides superior moisturisation”.

Energizer submissions

265    Energizer relies on its earlier submissions at [195] in respect of the claim “it’s like a blast of hydration to your face”.

266    Like P&G, Energizer does not distinguish between the statements “hydrates your skin while you shave” and “hydrates as you shave”. It relies on its earlier submissions on the claim “hydrates your skin as you shave” at [214] in this respect.

Consideration

267    My comments about the approach to interpreting the Schick Online Advertisement at [242]-[244] above are also generally applicable to the Hydro Online Advertisement. However, some of the class of consumers may not see or click on some (or any) of the responses to the questions on the FAQ Page, which are different in subject matter from the rest of the Hydro Online Advertisement and require the viewer to click on each “answer” button to see each response. There is no evidence as to the extent to which a viewer, going to the Hydro Online Advertisement, would read each of the responses on the FAQ page.

268    The Opening Page contains the “blast of hydration” claim. I have already indicated the reasonable consumer’s understanding of this claim at [197] above. This is to be given some emphasis in the context of the Hydro Online Advertisement as a whole, given that the Opening Page is the first page that the viewer encounters.

269    The link to the Facebook Page on the Opening Page is relevant given that there is an instantaneous means of connection. That is, the user merely has to click on the link and he will automatically be taken to the Facebook Page. However, given my findings on the representations made by the Facebook Page at [282]-[286] below, this does not assist P&G’s case.

270     As to the claims made on the FAQ Page, I have already indicated my views on the “Hydrating Gel Reservoir” claim and the “hydrates as you shave” claim (in the context of the claim “hydrates your skin as you shave”) above at [158]-[159] and [219]-[220] respectively. The “hydrates as you shave” claim on the FAQ Page is part of the broader statement that the hydrating gel reservoir “offers effortless glide & hydration as you shave”, with the reference to “effortless glide” linking the duration of the effect to the shaving process. Further, the “hydrates as you shave” claim needs to be seen in context; it is one of four dot points included in text responding to the question “what are the benefits of the hydrating gel reservoir?”. In addition, the first question on the FAQ Page, “what is Schick Hydro?”, contains the response that the Schick Hydro “hydrates your skin while you shave”. There is a difference between a claim adopting the words “hydrates as you shave” and “hydrates while you shave”. By use of the word “while”, the latter would indicate to the reasonable consumer that the hydration effect occurs during, and is confined to, the shaving process. P&G’s emphasis on the fact that this claim is made as part of a sentence where it is stated that the Hydro Products’ shaving system “puts skin care at the heart of shaving” does not alter this.

271    P&G also relies on the statement on the FAQ Page that “the lubrication provides superior moisturisation”. Although the word “moisturisation” may be associated with longer term effects on the skin, the import of this is somewhat reduced by the other words in that sentence, such as “which provides a comfortable shave”. In any event, the claim that “the lubrication provides superior moisturisation” only amounts to several words in the context of the series of text and images in the Hydro Online Advertisement and, as discussed above, it may not even be seen by the viewer.

272    In the context of the Hydro Online Advertisement as a whole, the Long-Lasting Hydration Representation is not made.

The Best Shave Representation

273    The “best shave for your skin” claim appears on the Products Page by way of the image containing the front of the Hydro 5 Packaging and the front of the Hydro 5 Replacement Cartridges Packaging. There is no reference to the “best shave for your skin” claim on any of the other pages of the Hydro Online Advertisement.

274    For the same reasons as those set out in relation to the Daily Telegraph Advertisement at [200] above, the “best shave for your skin” claim as used in the Hydro Online Advertisement is mere puffery. The Hydro Online Advertisement does not make the Best Shave Representation.

The Facebook Page

275    The Facebook Page contains a series of tabs for the viewer to select, including “Info” and “Products”. Irrespective of which of the tabs the viewer has selected, the left-hand side of the page contains, inter alia, the label “Schick HYDRO” and a link to the Hydro Online Advertisement.

276    If the viewer selects the “Info” tab, he is taken to a page that primarily contains text (the Facebook Info Page). This is annexure Z. The Facebook Info Page relevantly contains:

    Another link to the Hydro Online Advertisement.

    Under the description “Company Overview”, the statement: ‘From Energizer Holdings comes a bold new razor for its Schick brand. The Schick Hydro razors revolutionize men’s shaves by protecting and caring for skin while it removes hair thanks to many first to market technologies, such as the… Advanced Hydrating Gel Reservoir.’

    Under the description “Mission”, the statement: ‘Every attribute of the Schick Hydro razors work together as a complete skin comfort system to reduce irritation and provide soothing hydration.’

277    If the viewer selects the “Products” tab, he is taken to a page (the Facebook Products Page) which contains a series of images and text. This is annexure AA. The Facebook Products Page relevantly includes:

    An image with a blue background and water droplets that contains the text “IT’S LIKE A BLAST OF HYDRATION TO YOUR FACE”, above which, in smaller typeface, is the text “FREE YOUR SKIN”, and below which is displayed the front of a series of shaving gels and, in descending order of size, the front of each of the forms of the Packaging.

    The heading “2 new razors… Your old way of shaving just got blasted.” Under this heading, the following statements are made: ‘Schick Hydro is more than just a new razor – it’s a complete overhaul of the shaving process itself. We rebuilt the razor from the ground up… with one goal in mind: reducing irritation and taking care of your skin. The state-of-the-art Schick Hydro 5 razor hydrates and protects your skin as you shave with a breakthrough hydrating gel reservoir and built-in skin guards.’

    Under the heading “Overview of New Schick Hydro Razor Features”, there is a subheading entitled “Advanced Hydrating Gel Reservoir”, which relevantly states: ‘The Schick Hydro blade cartridge uses proprietary technology to pack advanced lubrication – with soothing aloe vera and vitamin E – into a Hydrating Gel Reservoir that reinvents the lubricating strip that is found on most razors today. Men typically shave away their shave gels with the first stroke of their razor. The lubrication delivered by Schick Hydro adds hydration in multiple strokes, providing lubrication from start to finish and reducing irritation.’ Alongside this text is the Magnified Hydro 5 Image.

The Long-Lasting Hydration Representation

P&G submissions

278    P&G points to:

    the statement on the Products Info Page that “IT’S LIKE A BLAST OF HYDRATION TO YOUR FACE” and repeats its submissions on the variant of this claim at [193] above.

    the statement on the Products Info Page that “the lubrication delivered by Schick Hydro adds hydration in multiple strokes, providing lubrication from start to finish”. P&G points out that lubrication is stated to occur from start to finish, but no duration is given for the hydration effect.

    the subheading “Advanced Hydrating Gel Reservoir” and relies on its submissions at [152] above. P&G also relies on the statements made beneath that subheading as conveying to the reader that there is some significant or beneficial level of improvement in the hydration or moisturisation of the face.

279    P&G also says that some of the explanation provided in the text of the Facebook Page is in smaller script and does not necessarily take away from the message made by the shorter, larger sized claims that are also made.

Energizer submissions

280    Energizer repeats its submissions on “blast of hydration” at [193] above.

Consideration

281    My comments about the approach to interpreting the Schick Online Advertisement at [242]-[244] above are also generally applicable to the Facebook Page.

282    Although it is necessary to consider the contents of the Facebook Page as a whole, including the contents of the various tabs, P&G seems to rely, in particular, on the contents of the Facebook Products Page.

283    I have already considered the meaning of the statement “blast of hydration” (or its variants) at [197] above. The same meaning applies here.

284    The “blast of hydration” claim is the dominant feature of the Facebook Products Page. Although the text below includes the statement that the Hydro 5 “hydrates and protects your skin as you shave”, this is a statement made in one of five paragraphs of text and has not been given the same emphasis as the “blast of hydration” claim. Further, my comments on the effect of the claim “hydrates your skin as you shave” at [219] above may not be applicable to the same extent in considering the Facebook Page. This is because the sentence containing the claim states that the Hydro 5 “hydrates and protects your skin as you shave with a breakthrough hydrating gel reservoir and built-in skin guards”. The statement, which includes references to skin protection and “Skin Guards”, confines the “hydrates… as you shave” claim, as used on the Facebook Page, to the shaving process itself. This is reinforced by the subsequent statement that “Schick Hydro Shave Gels prepare your skin for a smooth shave and help take care of it afterwards”, which indicates that another product is necessary for positive, post-shave effects on the skin.

285    Of the three paragraphs under the heading “overview of new Schick Hydro razor features”, two of them, “Skin Guards” and “Flip Trimmer”, are clearly referable to the shaving process. The third paragraph has the header “Hydrating Gel Reservoir”, which I have considered at [158]-[159] above. Although this paragraph contains references to aloe vera and vitamin E, my view, contrary to P&G’s submission, is that the statement “the lubrication delivered by Schick Hydro adds hydration in multiple strokes, providing lubrication from start to finish” provides further support for the view that the hydration effect represented on the Facebook Page is confined to the shaving process. P&G says that this claim states that lubrication (not hydration) is provided from “start to finish”, which means that the implication is that the hydration lasts beyond that discrete timeframe. However, this approach is too literal. The reasonable consumer would likely understand from this claim that the hydration is confined to the shaving process, especially in light of the first part of the sentence, which links the lubrication with hydration effects.

286    Considered as a whole, the Facebook Page does not make the Long-Lasting Hydration Representation.

The Best Shave Representation

287    The “best shave for your skin” claim is made on the Facebook Products Page by way of the image of the front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging. It is not prominent and is unlikely to be read.

288    P&G submits that the Facebook viewer would click on the hyperlink to the Hydro Online Advertisement, which is present in the text of the Facebook Products Page and, although not particularly prominently, along the left-hand side of the Facebook Page. Whether or not the reasonable consumer is likely to continue to the Schick Online Advertisement that page does not make the Best Shave Representation and does not assist P&G’s case.

289    For the same reasons as those set out in relation to the Daily Telegraph Advertisement at [200] above, the use of the “best shave for your skin” claim in the Facebook Page is mere puffery and does not constitute the making of the Best Shave Representation.

The Television Advertisements

290    The 30 Second Television Advertisement can be summarised as follows:

    0 to 4 seconds – vision depicting a boxer being hit on the side of the head by another boxer, with the boxing glove exploding into a cascade of water at the point of contact.

    4 to 9 seconds – vision depicting a woman and man in their underwear engaging in a pillow fight on a bed. The woman hits the man with a pillow, which explodes into a cascade of water at the point of contact.

    9 to 13 seconds – vision depicting a football player heading a football, which explodes into a cascade of water at the point of contact. The voice-over states: ‘It’s like a blast of hydration to your face.’

    13 to 17 seconds – vision depicts a droplet of water falling on and then dissolving into the Hydro 5. Written text appears stating “Schick Hydro 5”. The voice-over states: ‘New Schick Hydro. Water-activated gel that hydrates your skin as you shave.’

    17 to 23 seconds – vision depicting blades and then a razor against skin. Written text appears stating “lubrication strips” and then “dramatisation”. The voice-over states: ‘And lasts up to 2x as long as ordinary strips while five blades with skin guards smooth the skin to reduce irritation.’

    23 to 26 seconds – vision depicting a man looking into a mirror and wiping a towel against his face, with the towel exploding into a cascade of water at the point of contact. The voice-over states: ‘It’s the best shave for your skin.’

    26 to 30 seconds – vision depicting the front of the Hydro 5 Packaging alongside a Schick Hydro Shaving Gel, which is adjacent to the written text “FREE YOUR SKIN”. Below this a reference to the Facebook Page. The voice-over states: ‘The New Schick Hydro. Free your skin.’

291    The First 15 Second Television Advertisement can be summarised as follows:

    0 to 3 seconds – vision depicting a boxer being hit in the side of the head by another boxer, with the boxing glove exploding into a cascade of water at the point of contact. The voice-over states: ‘It’s like a blast of hydration.’

    3 to 9 seconds – vision depicting a droplet of water falling on and then dissolving into the Hydro 5, accompanied by the written text “Schick HYDRO 5”. This is followed by vision depicting a razor against skin (accompanied by the written text “lubrication strips”) and then blades against skin (accompanied by the written text “dramatisation”). During this vision, the voice-over states: ‘The new Schick Hydro. Water-activated gel hydrates your skin and skin guards reduce irritation.’

    9 to 12 seconds – vision depicting a man looking into a mirror and wiping a towel against his face, with the towel exploding into a cascade of water at the point of contact. The voice-over states: ‘It’s the best shave for your skin.’

    12 to 15 seconds – vision depicting the front of the Hydro 5 Packaging alongside a Schick Hydro Shaving Gel, which is adjacent to the written text “FREE YOUR SKIN”. Below this a reference to the Facebook Page. The voice-over states: ‘Schick Hydro. Free your skin.’

292    The Second 15 Second Television Advertisement can be summarised as follows:

    0 to 3 seconds – vision depicting a woman and man in their underwear engaging in a pillow fight on a bed. The woman hits the man with a pillow, which explodes into a cascade of water at the point of contact. The voice-over states: ‘It’s like a blast of hydration.’

    3 to 9 seconds – vision depicting a droplet of water falling on and then dissolving into the Hydro 5, accompanied by the written text “Schick HYDRO 5”. This is followed by vision depicting a razor against skin (accompanied by the written text “throughout each shave”) and then blades against skin (accompanied by the written text “dramatisation”). During this vision, the voice-over states: ‘Schick Hydro. Water-activated gel hydrates your skin and skin guards reduce irritation.’

    9 to 12 seconds – vision depicting a man looking into a mirror and wiping a towel against his face, with the towel exploding into a cascade of water at the point of contact. The voice-over states: ‘It’s the best shave for your skin.’

    12 to 15 seconds – vision depicting the front of the Hydro 5 Packaging alongside a Schick Hydro Shaving Gel, which is adjacent to the written text “FREE YOUR SKIN”. Below this a reference to the Facebook Page. The voice-over states: ‘Schick Hydro. Free your skin.’

293    There is background music for the duration of each of the Television Advertisements.

The Long-Lasting Hydration Representation

P&G submissions

294    P&G emphasises that the events that take place in the Television Advertisements, including a boxing match, bedroom pillow fight and a football match, are far removed in time and place from the act of shaving.

295    P&G repeats its submission at [193] above concerning the import of the statement “it’s like a blast of hydration”.

296    P&G repeats its submission at [212] above on the effect of the statement “hydrates your skin as you shave” in the 30 Second Television Advertisement.

Energizer submissions

297    Energizer repeats its submission at [214] above on the effect of the statement “hydrates your skin as you shave” in the 30 Second Television Advertisement. Energizer emphasises that the use of this voice-over statement expressly makes it clear that the hydration benefit is limited to the duration of the shaving process.

298    Energizer repeats its submission at [195] above concerning the import of the statement “it’s like a blast of hydration”.

299    Energizer repeats its submission at [153] and [215] above concerning the effects of exaggerated, ephemeral water images.

Consideration

300    As in the Zoo Weekly Advertisements, the Television Advertisements depict men in scenes that are not normally associated with the shaving environment. However, the Television Advertisements differ from the Zoo Weekly Advertisements in that these images appear either before, simultaneously with, or after the voice-over states “it’s like a blast of hydration to your face”. I considered the “blast of hydration” claim at [197] above and found that it would convey to the reasonable consumer that the hydrating effect is transient and confined to the shaving process. As I stated earlier, the reasonable consumer would appreciate that exaggeration is commonly used in the advertising of men’s razor products. Given the way in which the reasonable consumer would understand the “blast of hydration” statement, the scenes of the boxing glove, pillow, football or towel exploding would be understood, in context, as providing exaggerated visual images to reinforce the “it’s like a blast of hydration to your face” claim.

301    The references to the Facebook Page do not assist P&G’s case, given my finding that the Facebook Page does not make the Long-Lasting Hydration Representation and in light of my comments at [123] above.

302    Therefore, the First 15 Second Advertisement and the Second 15 Second Advertisement do not make the Long-Lasting Hydration Representation.

303    The 30 Second Advertisement also contains the “hydrates your skin as you shave” claim. Although the claim, taken alone, implies that the hydration effect is not confined to the shaving process, it needs to be considered in context (see [219]-[220] above). In the 30 Second Advertisement, the “hydrates your skin as you shave” claim is made by the voice-over in a tone identical to that used in the rest of the commercial. The statement occupies approximately 1-2 seconds out of the 30 seconds. The statement is made at the same time as images of a droplet of water falling onto a razor.

304    In the context of the reasonable consumer’s understanding of the claim “it’s like a blast of hydration to your face” and the accompanying exaggerated visual images, the “hydrates your skin as you shave” statement does not alter the effect of these other aspects of the 30 Second Television Advertisement. Therefore, the 30 Second Television Advertisement does not make the Long-Lasting Hydration Representation.

The Best Shave Representation

305    The “best shave for your skin” claim occurs at the end of each of the Television Advertisements in a voice-over using a tone identical to that used in the rest of the Television Advertisements. It follows statements referable to skin-related claims. It is made in the context of dramatic, visual images that are clearly exaggerated as a means of describing the shaving process.

306    I have already considered the reasonable consumer’s general understanding of the “best shave for your skin” claim above at [168] and [172], which is to the effect that the claim would not, of itself, be regarded as a statement of fact or comparative claim.

307    In the context of the Television Advertisements as a whole, there is nothing to suggest that the consumer’s understanding of the “best shave for your skin” claim would be displaced. In each of the Television Advertisements, the “best shave for your skin” claim is clearly puffery and does not involve the making of the Best Shave Representation.

The YouTube Page

308    The YouTube Page features a header labelled “Epic Hydration”, a visual presentation and text. In summary, the visual presentation contains:

    0 to 6 seconds – vision depicting a boxer being hit in the side of the head by another boxer, with the boxing glove exploding into a cascade of water at the point of contact. This cascade of water is not limited to the area of the YouTube Page which contains the presentation, but instead encompasses other parts of the YouTube Page.

    6 to 10 seconds – vision depicting a woman and man in their underwear engaging in a pillow fight on a bed. The woman hits the man with a pillow, which explodes into a cascade of water at the point of contact. Again, this cascade of water is not limited to the area of the YouTube Page which contains the presentation, but instead encompasses other parts of the YouTube Page.

    10 to 19 seconds – a still shot of the front of the Hydro 5 Packaging alongside a Schick Hydro shaving gel and the text “FREE YOUR SKIN”, below which is a reference to the Facebook Page. Beneath this image is a pool of water which has the effect of appearing three-dimensional. The still shot (and the video presentation) appear to drop from the space allocated to it on the YouTube Page and float from side to side in the pool of water.

There are various noises akin to water splashing during the video presentation.

P&G submissions

309    P&G repeats its submission that the events depicted in the presentation on the YouTube Page are far removed in time and place from the act of shaving (see [209] above).

Energizer submissions

310    Energizer repeats its submissions at [153] and [215] above concerning the effects of exaggerated, ephemeral water images.

Consideration

311    The visual presentation on the YouTube Page does not contain any express hydration claim. Given that the viewer would likely be interacting with the YouTube Page on a computer or mobile device, the still image of the front of the Hydro 5 Packaging in the visual presentation is too small for the viewer to be able to decipher the written text it contains.

312    The only clear reference to any hydrating effect at all on the YouTube Page is the statement “epic hydration” above the visual presentation.

313    In the absence of any relevant claims, the presence of exaggerated water imagery and the depiction of events removed from the act of shaving convey little meaning to the consumer.

314    The YouTube Page does not make the Long-Lasting Hydration Representation.

CONCLUSION

315    Energizer does not contravene ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation.

316    With the exception of the Zoo Weekly Advertisements, the Hydro Materials do not make the Long-Lasting Hydration Representation. By making the Long-Lasting Hydration Representation in the Zoo Weekly Advertisements, Energizer contravenes ss 18(1) and 29(1)(g) of the ACL.

317    With the exception of the Schick Online Advertisement, the Hydro Materials do not make the Best Shave Representation. As stated above at [11], whether Energizer contravenes ss 18(1) and 29(1)(g) of the ACL by making the Best Shave Representation in the Schick Online Advertisement is not for determination in these reasons.

I certify that the preceding three hundred and seventeen (317) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:    29 November 2011

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