Cantarella Bros Pty Ltd v Valcorp Fine Foods Pty Ltd [2002] FCA 8 (11 January 2002)

Last Updated: 21 March 2011

FEDERAL COURT OF AUSTRALIA

Cantarella Bros Pty Ltd v Valcorp Fine Foods Pty Ltd [2002] FCA 8

TRADE PRACTICES – misleading or deceptive conduct – advertising of coffee in Retail World magazine addressed to supermarkets and other grocery outlets – advertisements asserting best seller status with a view to persuading readers to stock respondent’s LavAzza coffee in preference to applicant’s Vittoria coffee – whether facts demonstrated that the proper constructions of the advertisements conveyed false representations

Trade Practices Act 1974 (Cth) s 52

CRW Pty Ltd v Sneddon [1972] AR (NSW) 17 referred to
Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 referred to
Annand & Thompson Pty Ltd v Trade Practices Commission [1979] FCA 36; (1979) 40 FLR 165 referred to
10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 referred to
Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 followed
Telstra Corp Ltd v Cable & Wireless Optus Ltd [2001] FCA 1478 followed

CANTARELLA BROS PTY LIMITED (ACN 000 095 607) v VALCORP FINE FOODS PTY LIMITED (ACN 064 664 044)

N 906 OF 2000

LINDGREN J
11 JANUARY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 906 OF 2000

BETWEEN:	CANTARELLA BROS PTY LIMITED (ACN 000 095 607) APPLICANT/CROSS-RESPONDENT
AND:	VALCORP FINE FOODS PTY LIMITED (ACN 064 664 044) RESPONDENT/CROSS-CLAIMANT
JUDGE:	LINDGREN J
DATE OF ORDER:	11 JANUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be stood over to 11 February 2002 at 9.30 am for the making of orders (including orders as to costs).
   
2. The parties provide to the Associate to Lindgren J by 8 February 2002 an agreed form of the orders to be made, or, if agreement has not been reached by then, with the forms of orders for which they will respectively contend.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 906 OF 2000

BETWEEN:	CANTARELLA BROS PTY LIMITED (ACN 000 095 607) APPLICANT/CROSS-RESPONDENT
AND:	VALCORP FINE FOODS PTY LIMITED (ACN 064 664 044) RESPONDENT/CROSS-CLAIMANT

JUDGE:	LINDGREN J
DATE:	11 JANUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant (“Cantarella”) distributes and sells in Australia the well-known Vittoria brand of coffee. The respondent (“Valcorp”) distributes and sells in Australia the well-known Italian LavAzza brand of coffee. Each party complains that the other has been advertising its coffee in a manner likely to mislead or deceive. Valcorp’s complaint finds expression in a cross-claim, but, for reasons which I need not discuss, the hearing of the cross-claim has been deferred. These reasons relate, therefore, only to the head claim.
2. Cantarella seeks injunctive relief and an order for corrective advertising. If I should decline those forms of relief on discretionary grounds, Cantarella seeks declarations of infringement.

BACKGROUND FACTS

Retail World

3. There is no substantial dispute as to the facts. The case is to be decided by reference to a determination of the effect of the advertisements. Therefore, it will be necessary to attend closely to the advertisements. Copies are annexed to these reasons for judgment. But before I discuss the advertisements in detail, it is desirable that I discuss Retail World and its readership.
4. Retail World is published by Retail World Pty Ltd. The magazine was established in New South Wales in 1947 and has been published continuously since then. It is now available in all States of Australia. Since its establishment, its purpose has been to inform participants in the retail grocery sector about their industry. It is the only publication of its kind in Australia and is therefore a very important and useful source of information relating to the retail grocery market. It is published every two weeks and is distributed to every major supermarket in Australia and to the major food manufacturers. For small independent retailers (referred to by some of the witnesses as “mama and papa stores”) which do not have their own sources of information about the retail grocery market, the magazine is a vital source of such information.
5. According to an affidavit of Barry Flanagan, the editor of Retail World, the fortnightly issues of Retail World are distributed as follows:

“(a) free copy to the store manager of each store of the major supermarkets in Australia, being Woolworths, Coles, Franklins, Bi-Lo, IGA, Action, Food-way, FoodWorks, SPAR, 7-Eleven, and BP. Approximately 10,000 are distributed to these outlets. Of these 10,000 copies distributed, copies go to, for example, the produce manager; the meat manager; the bakery manager, with copy(s) from either sources usually left in the staff room for other employees to read;

(b) approximately 5-10 free additional copies are sent to each of the stores listed in ... (a) above for distribution to buyers and staff;

(c) free copy to the store manager of smaller grocery outlets that are members of a banner (e.g. Four Square stores) [the “mama and papa stores”]; and

(d) for sale upon request to grocery manufacturers, researchers, stock brokers.”

6. Manufacturers of grocery lines purchase advertising space in Retail World. A full page advertisement on the front cover costs $14,380, whereas a full page advertisement inside the magazine costs $7,190.
   
7. Each December, an issue of Retail World is published reporting statistics from the previous year relating to the sales of grocery products. This report indicates such matters as market sizes, market shares of various manufacturers, trends in the grocery industry and sales during the year under review. These statistics are produced both for the brands of particular manufacturers and also for individual products.
8. The annual report splits the coffee category into “instant coffee” and “pure coffee”. The present case is concerned with pure coffee. Pure coffee (sometimes referred to as “roast and ground”) is further divided into “bean/roast”, “ground” and “pulverised”. Market shares and brand shares are reported as percentages of either the instant or pure coffee category. The division into “instant” and “pure” is based on figures the publisher receives from participants in the retail grocery sector and reflects the manner in which the major grocery retailers divide and report on their coffee sales. The treatment of coffee bags seems to have varied from time to time. Some years they are included in the pure coffee segment and other years they are not.

The advertisements generally

9. I turn next to describe the advertisements of which Cantarella complains.
10. The first of the LavAzza advertisements appeared as page 39 in issue No 24 of Vol 52 of Retail World in December 1999. Through its solicitors, Cantarella complained of this advertisement. By a letter dated 11 January 2000 from Valcorp’s solicitors to Cantarella’s solicitors, Valcorp advised that it had only intended to publish the advertisement in the December 1999 issue of Retail World and that the advertisement would not be published again.
11. The second form of advertisement appeared in two issues of Retail World; one being issue No 8 of Vol 53, dated 1-12 May 2000, and the other being issue No 15 of Vol 53, dated 7-18 August 2000. The former appeared on the cover whereas the latter appeared on an internal page. It may be that there are slight differences in colouring between the two advertisements, but I will treat them as identical and will deal with them as if they were a single advertisement, as counsel for both parties did.
12. The third and last advertisement appeared on the cover of the Retail World issue No 21 of Vol 53, dated 23 October-3 November 2000.
13. There is a question of how best to identify the three advertisements. In the amended statement of claim and in the sequence of exhibit numbering, the form of advertisement which was in fact the second to appear in Retail World was the one first identified and marked. That is to say, the advertisement referred to in [11] above was Annexure A to the amended statement of claim and admitted into evidence as Exhibit A1. The first advertisement published (referred to in [10] above) was Annexure B to the amended statement of claim and Exhibit A2. The third one to be published (referred to in [12] above) was Annexure C to the amended statement of claim and Exhibit A3. Consistently with that manner of identification of the three advertisements (which was consistent with the references to them in the submissions of both counsel), I will use the same annexure numbers.

Annexure A (Exhibit A1) – Retail World No 8 Vol 53, 1-12 May 2000 and No 15 Vol 53, 7-18 August 2000 (“No 1”)

14. As can be seen from Annexure A, “No 1” is prominent, as is a picture of a “brick” or pack of LavAzza Qualità Oro ground coffee having a net weight of 250g. Again, as can be seen, below the picture appears the following line of print in a prominent position and size:

“Australia’s top selling ground coffee pack for the past 3 years.”

Below that line and separated from it by a space occurs the following:

“LAVAZZA
CAFFè ESPRESSO”

Separated from, and below, that block of print occurs the following line in smaller print, on which Valcorp relies:

“Qualità Oro 250g no.1 ranked SKU (value) AC Nielsen MAT 26/3/00.”

15. Finally, separated from and below that line appears details of various offices of Valcorp in Victoria, New South Wales, Queensland, South Australia and Western Australia.
16. The abbreviation “SKU” in the advertisement stands for “Stock Keeping Unit”, a reference to a product for which a separate bar code exists, or which is otherwise recognised as a distinct product line at the cash register. The abbreviation “MAT” stands for “Moving Annual Total” and refers to the total sales for the period of twelve months ending on the date shown.
17. Cantarella’s primary submission is that this advertisement would have conveyed to the readers of Retail World a representation that more units of Valcorp’s 250g LavAzza Qualità Oro pack had been sold in Australia for the preceding three years than any competing pack. Valcorp, on the other hand, submits that the advertisement represented to readers that in terms of value of retail sales, its 250g LavAzza Qualità Oro pack was ranked ahead of any competing ground coffee pack.

Annexure B (Exhibit A2) – Issue of Retail World No 24 Vol 52, December 1999 (“Australia’s number one coffee. Since 1996”)

18. It will be observed that this advertisement by Valcorp was in respect of four product brands (of which LavAzza was only one) for which Valcorp was the Australian national marketer and distributor. For present purposes the most important part of the advertisement is simply the following:

“LAVAZZA
CAFFè ESPRESSO

* Italy’s number one coffee. Since 1894.
Australia’s number one coffee. Since 1996.”

19. Again, Cantarella’s primary submission is that readers of Retail World would have understood the expression “number one” to refer to units sold, or at least, volume sold. Valcorp, on the other hand, submits, firstly, that the claim made is one of general superiority and is not representational at all, and, secondly, that in so far as it is representational, it is not shown to be wrong. In particular, Valcorp submits that the Retail World statistics relate only to the selling of coffee at the retail grocery level and do not include, for example, statistics relating to coffee sold by restaurants, hotels, caterers and institutional outlets.

Annexure C (Exhibit A3) – Retail World No 21 Vol 53, 23 October - 3 November 2000 (“Victoria’s No 1*”)

20. It will be noted that an asterisk occurs after the prominent words “Victoria’s No 1” as follows:

“Victoria’s No.1*”,

and in the statement:

“LavAzza – Italy’s undisputed number one coffee – is now market leader in Victoria*.”

The asterisk refers to the following:

“(*AC Nielsen data MAT 10/9/00 (value) – Victoria.)”

Again, Valcorp submits that the material to which the asterisk refers makes it clear that LavAzza’s market leadership is a market leadership measured by the AC Nielsen data of the MAT of the value of retail sales for the twelve months to 10 September 2000. Cantarella’s primary submission is, again, that readers of Retail World would understand that a representation by reference to number of units sold at the retail grocery level was being made.

Statistical evidence of sales of ground coffee in the retail grocery market

21. Both parties adduced expert evidence as to the nature of ground coffee sales in the retail grocery market. Cantarella relied on the evidence of Mr Bennett, while Valcorp relied on that of Ms Cahill.
22. There were some differences in the data relied on by the experts. The data supplied by Cantarella did not include all of the raw data in respect of Australian Independent Wholesalers (“AIW”), which represented some 1.7 per cent of the Australian retail grocery market. Similarly, the data supplied by Valcorp did not include the raw data supplied by Metcash, which represented some 12 per cent of the Australian retail grocery market. Despite these differences, at the conclusion of the proceeding it was apparent that the area of contention between the two experts was relatively small.
23. There are three general measures by which ground coffee sales in the retail grocery market may be gauged. These are:

(i) the value of ground coffee sold, measured by the dollar value of retail sales;

(ii) the volume of ground coffee sold, measured in tonnes;

(iii) the number of units sold, measured by packs or “bricks” of ground coffee.
These measures can be used to evaluate either the sales of a particular brand of ground coffee or those of an individual product of a manufacturer (SKU).

24. Mr Bennett’s testimony indicates that in the period between 1996 and the appearance of the advertisement which is Annexure B in December 1999, LavAzza was not the top selling ground coffee brand in the national retail grocery market by any of the three measures mentioned.
25. In terms of the value of ground coffee sales made by grocery retailers nationally, in the period between 1996 and December 1999, LavAzza was not the top selling ground coffee brand. In both the 1997 and 1998 calendar years, LavAzza was ranked third in value of ground coffee sales, behind Vittoria and Harris. In the 1999 calendar year, LavAzza was ranked second, behind Vittoria. Across the period as a whole, LavAzza was ranked third in the value of ground coffee sales behind Vittoria and Harris.
26. In terms of the volume of ground coffee sold by grocery retailers nationally, LavAzza was not the top selling brand for the period between 1996 and December 1999. In the 1997 calendar year, LavAzza was the fifth ranked ground coffee brand behind Vittoria, Harris, Aurora and Robert Timms. In the 1998 and 1999 calendar years, LavAzza again failed to sell the greatest number of tonnes of ground coffee – Vittoria, Harris and Aurora outsold it. Over the period as a whole, LavAzza was the fourth ranked brand in terms of the volume of ground coffee sold.
27. In terms of the number of units of ground coffee sold by grocery retailers nationally, in the period between 1996 and December 1999 LavAzza was not the top selling ground coffee brand in Australia. For each of the calendar years 1997, 1998 and 1999, and over the period as a whole, LavAzza was ranked fourth in terms of number of units sold, behind Vittoria, Harris and Robert Timms.
28. For each of the surveys carried out by AC Nielsen encompassing the twelve months to 22 March 1998, 21 March 1999 and 30 April 2000, the 250g LavAzza Qualità Oro pack was the top selling coffee pack in the Australian retail grocery market, but only when measured by the value of package sales. During this period, the 250g LavAzza Qualità Oro pack was ranked second when measured by reference to the volume of ground coffee packs sold, behind the 1kg Aurora Italian Gr Brick, and the number of units sold, behind Vittoria Espresso Gr Brick 200g. Further, in each of the calendar years 1997, 1998 and 1999, and the twelve months to 19 March 2000, LavAzza was ranked second in terms of the number of units sold, behind the 200g Vittoria Espresso pack.
29. Evidence was also provided relating to sales of coffee in the Victorian retail grocery market in the twelve months to 1 October 2000. The data supplied by Cantarella’s expert, Mr Bennett, indicated that during this period LavAzza was the top selling brand of coffee when measured by reference to the value of coffee sales in the retail grocery market. However, during this period, LavAzza was the second ranked brand, behind Vittoria, in the Victorian retail grocery market when measured by reference to the number of units sold and the volume of ground coffee sold.

REASONING

The readers of the advertisements

30. Both parties asked me to infer that readers of Retail World would have read the three advertisements with one or other of various predispositions. I accept that they would have read them as being directed to the positions of supermarkets and other grocery outlets as retailers of coffee. Accordingly, and perhaps obviously enough, in one way or another the common understanding of all concerned was that the advertisements were intended to show that a retailer would be “better off” by stocking the brand or product advertised than by stocking any competing brand or product. For this reason, in my opinion, readers would not have understood the advertisements to have had any reference to sales of coffee otherwise than as retail grocery items. For example, they would not have understood the advertisements to be making a claim which could be supported only if sales of coffee in restaurants, hotels and institutions, and through caterers were taken into account.
31. The evidence was not all one way as to what readers would have understood by “better off” from the viewpoint of grocery retailers. Mr Bennett testified that number of units sold was the most widely accepted measure of success of a coffee brand or product in the retail grocery sector. Ms Cahill supported the dollar value of sales as the most widely accepted measure. Each expert gave reasons directed to supporting his or her own view and undermining that of the other expert.
32. It is clear that all three measures of success mentioned earlier (number of units, volume and value) appear in advertisements in Retail World. It may be that the predisposition of readers of advertisements in the magazine differs as between the various subjects of the advertisements. The fact is, in my view, that many advertisers seize on any measure by which their product can be shown in a favourable light and many readers know that they do so.
33. In my opinion the evidence does not establish such a strong predisposition to understand the advertisements as referring to one particular measure of success, that their effect on readers should be determined by an approach which distorts their terms. This leaves those terms to be appropriately analysed.
34. I turn now to the question of “reader sophistication”. Although Retail World is directed to a specialist readership, readers are not all at the one point on the spectrum of sophistication. The officer responsible for the national grocery buying policy of Coles or Woolworths may be at one extreme, while the operator of a “mama and papa” store may well be at the other.
35. Section 52 of the Trade Practices Act 1974 (Cth) speaks of conduct that is “misleading or deceptive or likely to mislead or deceive”. In applying the section, I recognise that there are not merely shrewd, astute, ingenious, intelligent, educated and experienced readers of Retail World, but also gullible, unintelligent and inexperienced ones: cf CRW Pty Ltd v Sneddon [1972] AR (NSW) 17 (“CRW”) at 28 per Sheldon and Sheppard JJ; Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 at 181 per Franki J, 202 per Deane and Fitzgerald JJ. In Annand & Thompson Pty Ltd v Trade Practices Commission [1979] FCA 36; (1979) 40 FLR 165 (“Annand”) at 176 (cited with approval in Tobacco Institute of Australia v AFCO [1992] FCA 630; (1992) 38 FCR 1 (Hill J) at 49-50), Franki J stated that “[b]roadly speaking it is fair to say that the question is to be tested by the effect on a person not particularly well informed, but perhaps of somewhat less than average intelligence and background knowledge although the test is not the effect on a person who is, for example, quite unusually stupid”. In 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 (FCA/FC), Wilcox J referred to “a significant” proportion of readers as providing the criterion by which the propensity of an advertisement to mislead or deceive was to be assessed.
36. More recently in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 the High Court said (at [103], [105]) that where the persons to whom a representation is made are not identified individuals, but are members of a class, it is by reference to a hypothetical “reasonable” or “ordinary” member of the class, and not the assumptions made by one whose reactions are extreme or fanciful, that the “misleading or deceptive” capacity of the representation is to be determined. Goldberg J had occasion to consider this criterion in Telstra Corp Ltd v Cable & Wireless Optus Ltd [2001] FCA 1478. His Honour thought that the approach taken in such cases as CRW and Annand was still generally applicable, although “[t]he extremely stupid, and perhaps the gullible may well be excluded from the class of persons who read ... advertisements [of the kind the subject of the case] in newspapers” (at [23]). In addition, his Honour considered that where an advertisement was capable of more than one meaning, its capacity to mislead or deceive must be tested against each meaning which is reasonably open.
37. Of course I will seek to take the approach formulated by the High Court. Since I do not think that taken by Goldberg J to be inconsistent with it or to be plainly wrong, I will seek to follow his Honour also, although in my opinion whether or not I do so will make no difference to the result in the present case. I think it appropriate to test the advertisements’ capacity to mislead or deceive by reference to the assumptions and reactions, not extreme or fanciful, of a reasonable or ordinary small independent retailer, that is to say, the operator of a “mama and papa” store.

Annexure A (Exhibit A1) – Retail World No 8 Vol 53, 1-12 May 2000 and No 15 Vol 53, 7-18 August 2000 (“No 1”)

38. The advertisement is in respect of a particular product line (SKU), namely, the 250g LavAzza Qualità Oro Gold brick of ground coffee.
39. No doubt some readers, such as those in the major supermarket chains having a high level of responsibility for deciding the type and quantity of coffee to buy, may study the fine text closely. But I think it likely that an “ordinary” or “reasonable” participant in the retail grocery industry would pass over the small print. There is no asterisk, not even a small one, to draw attention to it.
40. The word and figure “No 1” receive by far the strongest emphasis but a reasonable and ordinary reader would see, in what is still fairly prominent print below the picture, the following explanation of “No 1”:

“Australia’s top selling ground coffee pack for the past 3 years.”

I think that most reasonable and ordinary readers would go no further and that they would understand that the claim to be “No 1” involved a representation that more 250g LavAzza Qualità Oro packs of ground coffee had been sold in Australia over the previous three years than any competing ground coffee packs. Although it is possible for a particular ground coffee pack to be assessed as “top selling” by reference to value of sales, I think the emphasis in the advertisement on the particular pack makes it unlikely that it would be read in that way.

41. The mere expression “No 1” in isolation would not necessarily be understood to mean number one by reference to units sold. However, the dominant picture of the pack directly beneath that expression, combined with the words immediately below the picture, would cause an ordinary and reasonable reader to understand that the claim to be No 1 was being made by reference to units sold.
42. Valcorp submits that, when regard is had to the advertisement as a whole, it is not misleading. However, the representation mentioned is too clear to be qualified by the unasterisked reference in very small print to the AC Nielsen data. That line is in much smaller print than the line “Australia’s top selling ground coffee pack for the past 3 years” and it is separated from that claim by the two lines:

“LAVAZZA
CAFFè ESPRESSO”

43. Even if, contrary to my finding above, an ordinary and reasonable reader went on to read the small print relating to AC Nielsen data, the absence of an asterisk or other mark connecting the small print to the forceful representation above would prevent the small print from effectively qualifying that representation for him or her. Many ordinary and reasonable readers would understand the small print as making a distinct, independent and additional claim. This would leave the main claim unqualified.
44. As we know, the pack depicted was not the top seller by reference to units sold. Accordingly, Valcorp engaged in conduct which was misleading or deceptive or was likely to mislead or deceive by causing the advertisement in Annexure A to be published in Retail World.

Annexure B (Exhibit A2) – Issue of Retail World No 24 Vol 52, December 1999 (“Australia’s number one coffee. Since 1996”)

45. This advertisement is clearly of the LavAzza brand rather than of a particular product line within that brand. There is no explanatory sub-text. However, there is an asterisk which refers to the footnote:

“*AC Nielsen MAT to 15/8/99 (Value).”

46. The asterisk is very small and precedes the line relating to Italy rather than that relating to Australia. A reader familiar with AC Nielsen might read the footnoted elaboration and conclude that the asterisk was intended to relate to the Australian claim rather than the Italian one, on the ground that the AC Nielsen organisation did not exist in 1894. But, if a claim is to be clarified by reference to an asterisked footnote, the signpost to the footnote must be more clear if the footnote is to be effective in curing the otherwise misleading or deceptive operation of an advertisement. Reasonable and ordinary small independent retailers, if they noticed at all the very small asterisk next to the line commencing “Italy’s number one coffee. Since 1894”, would not be interested to go to the asterisked material, or, on going to it, would find it confusing and not bother to work out whether it related to the Italian claim or the Australian claim.
47. What meaning would such readers take from the line:

“Australia’s number one coffee. Since 1996.”

I think a reader would understand that a claim was being made that, by reference to some measure or other available to the advertiser although not identified in the advertisement, LavAzza had been the number one selling brand of coffee in Australia since 1996. As mentioned earlier, I do not accept that readers would have been predisposed to understand claims of selling success as referable to any particular one of the three measures mentioned.

48. Valcorp submits that the advertisement was making no more than a general claim that LavAzza coffee was of a quality superior to that of other brands. I do not agree, and for three reasons. First, the reference to the year 1996 is specific. Secondly, the presence of the asterisk, albeit against the wrong line, suggests that a representation of fact is intended. Thirdly, likewise the expression in the text “making regular appearances in the Top Ten retail rankings in their respective markets”.
49. The better view is that the advertisement was making a claim that since 1996, by some measure available to the advertiser, LavAzza was the top selling brand of ground coffee in Australia.
50. Even if the asterisked footnote is taken into account as relating to Australia, the advertisement is misleading or deceptive. The reason is that while the evidence does not establish the position of the LavAzza brand in Italy, by none of the three measures mentioned earlier was the LavAzza brand the top selling brand of coffee in Australia since 1996. (As noted earlier, in the light of the purpose and readership of Retail World, in my opinion the advertisement is not saved by the fact that sales of coffee, otherwise than as grocery items in shops, are left out of account.)
51. It follows that the advertisement was misleading or deceptive or likely to mislead or deceive.

Annexure C (Exhibit A3) – Retail World No 21 Vol 53, 23 October – 3 November 2000 (“Victoria’s No 1*”)

52. In this case asterisks appear in two places: prominently as part of the heading, and following the words “is now market leader in Victoria”. The asterisk in the heading alone is sufficiently obvious, in terms of size and placement, to direct an ordinary and reasonable reader’s attention to the footnote. Again, as mentioned earlier, I do not accept that readers were predisposed to read the advertisements as referable to any particular one of the three measures of sales. I think an ordinary and reasonable reader would understand this advertisement to represent that, at about September-November 2000, the LavAzza brand was outselling all other coffee brands in Victoria by the measure of value. This appears to have been true.
53. Accordingly, this advertisement was not misleading or deceptive or likely to mislead or deceive.

CONCLUSION

54. It follows that Cantarella has succeeded in relation to the advertisements in Annexures A (“No 1”) and B (“Australia’s number one coffee. Since 1996”) but not in relation to the advertisement in Annexure C (“Victoria’s No 1”). I will hear the parties on the form of relief to be granted and on costs.
    

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 11 January 2002

Counsel for the Applicant:	Mr D M Yates SC and Mr S C G Burley
Solicitors for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	Mr J C Sheahan SC
Solicitors for the Respondent:	Cornwall Stodart
Date of Hearing:	15 & 16 November 2001
Date of Judgment:	11 January 2002

ANNEXURE A

ANNEXURE B

ANNEXURE C