Are texts, such as ‘the BEST SHAVE for your SKIN’, ‘hydrating before, during and after shaving’, and ‘shaves BETTER than MACH 3’ permitted? These questions were central to two preliminary relief proceedings conducted recently by Gillette against Wilkinson, based on misleading and comparative advertisements and unfair commercial practices.
The best shave…
In its ruling on the ‘best shave for your skin’, the Court found that this must be deemed as a form of exaggeration and not as a claim to superiority (to be proved). It is also not evident from market research submitted by Gillette that the text is to be interpreted as a comparison actually based on the truth and not as an exaggeration not to be taken seriously. In the process, consequences of Gillette’s claims to be merely using the slogan (and not making a superiority claim) ‘the best a man can get’ shall make themselves partially felt.
better than mach 3
The general term ‘shaves better’ provides, according to the Court, insufficient insight into why Wilkinson’s advertised product might score better (smoother? shorter? better for the skin? more supple?). Since insufficient clear reference is made to the back of the packaging, for instance in the form of a footnote, a clear reference is absent. Further, nowhere is it made clear, regarding the points mentioned on the packaging, that these are the points on the basis of which Wilkinson scores better. The contributed reports, which primarily refer to theoretical advantages, also do not help Wilkinson to substantiate the claim.
hydrating effect
Wilkinson’s claims regarding the hydrating effect of its products were also contested by Gillette. In the Court’s opinion, it is insufficiently apparent from the relevant promotional texts that the disputed claim only relates to an effect during shaving. The public shall think that it concerns a longer-lasting effect. In support of its argument, Gillette made reference to research from which it was apparently evident that a significant segment of the general public thinks that the hydrating effect shall last longer than the shave (or soon afterwards). This coloured version of the truth was further enhanced by texts such as ‘a hydrating and soothing layer’, and ‘on the to-date well-known lubricating strips, whereby the soothing ingredients often disappear already after one shave’. On the other hand, Wilkinson was able to demonstrate that a hydrating effect exists during the shave, but it must make it clear that the hydrating effect is restricted to that short time span, for instance via a disclaimer such as ‘hydrating effect only occurs during shaving’.
The above issues make it, once again, all the more clear that claims in advertisements generally have to be properly and clearly substantiated, and – in the absence of solid evidence – can be successfully contested by the competition as being misleading.
Joost Becker
