Justice John Halley on Friday ordered that Henkel Australia be barred from selling or offering for sale its Somat dishwashing products branded with a logo that RB Australia claims is substantially identical to two registered trade marks for its Finish Powerball detergent.

The judge issued his ruling a day after hearing arguments on RB’s application for the interim injunction. RB and unit Reckitt Benckiser Finish allege Somat dishwashing products, which first appeared in IGA supermarkets on August 11 and have since been stocked in around 90 per cent of Coles supermarkets, bear a striking similarity to the logo on Finish Powerball products, in breach of the Trade Marks Act.

Counsel for Henkel Ed Heerey QC argued on Thursday that an interim injunction could derail the launch of Somat-branded products in Australia.

Heerey argued that RB was asking for injunctive relief to retain its competitive advantage in the $368 million Australian dishwashing market.

“The effect of [this] injunction is to throw a spanner in the works. It’s to derail this launch that has been so meticulously prepared for so long. It’s to deprive Henkel and its trade partners … of what they’ve set out to achieve,” Heerey told the court.

“By disrupting this launch halfway through we are not getting the full value of the surprise that we are entitled to capitalise on … By forcing us to compete without our flagship, premium product, [Finish] is getting a competitive advantage.”

Heerey said competition should be given “very weighty consideration” in the case.

“It is inherently good for retailers and consumers for a new entrant to come in and sell products competing in a premium category against Finish, particularly when they enjoy almost two thirds of the market. To deny that competitive benefit to consumers and retailers is something the court ought not to do lightly and it is not justified in the present case,” he said.

The injunction could cause “unquantifiable” damage to the relationship between Henkel and its customers, Heerey said.

“How could you ever put a price on that? You could never put a price on that. It affects not just our relationship with Coles, but also IGA … They will be left with a sour taste in their mouth,” he said.

Counsel for RB Michael Hall SC described the proposed injunction as a “hiccup” that Henkel approached “with its eyes wide open”.

He argued the injunction was necessary because distinctive components of Somat’s logo, such as the red “powerball” prominently visible on the product’s surface, in combination with the blue and white gel cap swirls, were likely to place consumers at real risk of confusion.

“There is a long history of the Finish brand in Australia and the picture that emerges is of many millions of dollars of expenditure in advertising and many millions in revenue achieved by the brand in a total period of over 20 years. There is recognition on the public’s part [and] when they see this product depicted in the trade mark they think they will get the quality and the nature of goods they have become accustomed to,” Hall said.

“It’s that loss of that investment in public trust we respectfully say goes up in smoke unless the status quo is preserved between now and the commencement of these proceedings.”

Hall told the court that to deny the injunction was to allow the “erosion of the trade mark’s value”, which could prove incredibly difficult to quantify should RB win its case.

In a cross-claim filed on August 16, Henkel argues RB has not used the mark as endorsed and registered for the past three years and it does not have monopoly over the image of the gel capsule as it appears on the Somat products.

RB (Hygiene Home) Australia Pty Ltd and Reckitt Benckiser Finish B.V are represented by Michael Hall SC, with Gilbert Tsang, instructed by Thomson Geer.

Henkel Australia Pty Ltd is represented by Ed Heerey QC, with Frances St John, instructed by Ashurst.

The case is RB (Hygiene Home) Australia Pty Ltd & Anor v Henkel Australia Pty Ltd.

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