Scott Paper has launched a lawsuit against Procter & Gamble for what it claims is misleading advertising of its Canadian Bounty paper towels.

Scott Paper filed a Statement of Claim in the Federal Court of Canada on Nov. 6 stating p&g is benefiting from misleading consumers and retailers about the superior performance of its Bounty paper towels compared with other products, including ScotTowels Jumbo and ScotTowels Ultra.

The advertising in question, running nationally since January 1995 and created by Leo Burnett in Toronto, features a spokesperson named ‘Rosie’ who compares the absorption of Bounty paper towels to leading brands in sopping spills.

Scott Paper claims the comparison is ‘false and misleading’ as the advertising fails to point out that Bounty sheets are two inches longer than the industry standard of nine inches, which, in turn, exaggerates the absorptive capacity of Canadian Bounty sheets in the ads.

Other complaints Scott Paper makes in the claim are that the tagline ‘Quicker Picker Upper’ suggests Bounty sheets have a faster rate of absorption, which is unproven.

Also, Scott Paper states the phrase ‘Now here in Canada,’ implies the u.s. product is now imported and sold in Canada when the products are made in Canada and ‘are substantially inferior.’

Another phrase objected to in Bounty advertising is ‘paper towels are all the same,’ which Scott Paper contends suggests all ‘paper towels are the same except Canadian Bounty, whereas ScotTowels Ultra is clearly superior with a higher absorptive capacity.’

Scott Paper is asking for a permanent injunction against p&g’s use of the slogan ‘The Quicker Picker Upper’ when referring to Bounty and preventing p&g from making ‘side-by-side’ product comparisons.

Scott Paper is also hoping to be granted an injunction against any inference that Canadian Bounty is the same as the u.s. product, and seeks the ‘prohibition of misleading statements of absorptive capacity or speed of absorbency of Canadian Bounty products’ and a ban on misleading promotional literature.

General damages are also sought by Scott Paper in an amount equal to what p&g gained through Bounty advertising or what profits Scott Paper believes it lost.

Finally, Scott Paper is looking for punitive and exemplary damages of $1 million.

Scott Paper claims it tried to rectify the situation through ‘less adversarial and voluntary means,’ but says p&g refused to co-operate and make changes.

In response to the lawsuit, p&g states it is ‘well known in the industry as a responsible advertiser and has complete confidence that this advertising is supportable.’

Also, p&g claims it responded in writing to Scott Paper in June with regard to the complaints and got no response.

p&g also says an ‘impartial forum’ was also planned for October, but it claims Scott Paper withdrew.

p&g will not comment on the suit before it is dealt with in court.

While no one will confirm there is a trend, lawyers concede there have been a lot of misleading advertising cases in the past year in Ontario.

Rob Kwinter, partner at Toronto law firm Blake Cassels & Graydon, says it is too early to tell if there is a trend in the increased number of misleading comparative advertising cases or if it is just coincidence.

Kwinter says about six or seven cases across Canada have gone to court over the past year, which is significantly more than previous years.

Kwinter did say though that he has seen an increase in more aggressive comparative advertising in Canada compared with three or four years ago, as well as more aggressive responses by competitors to comparative advertising.

Other cases in the past year that have seen a number of ads attacked involved Beatrice Foods vs. Ault Foods, Church & Dwight vs. Sifto Canada, and Maple Leaf foods vs. Robin Hood Multifoods.

In January this year, Beatrice Foods filed a claim against Ault as its advertising suggested Ault’s premium Lactantia PurFiltre milk had superior purity to regular milk, a claim Beatrice Foods believed insupportable.

The injunction was not granted.

This fall, Church & Dwight, makers of Arm & Hammer baking soda, launched and won an injunction against Sifto Canada, which had recently launched a baking soda of its own. Sifto claimed on its packaging the product was ‘100% pure and natural.’

Church & Dwight sought an injunction on the premise that Sifto Baking Soda packaging unfairly claimed it was the only naturally occurring baking soda on the market.

Maple Leaf Foods, this time last year, filed a claim against Robin Hood Multifoods to get an injunction on advertising that suggested Maple Leaf Food pie crusts were inferior to Robin Hood Multifoods pie crusts, and could not be used to top a pie.

Maple Leaf Foods was granted the injunction.

Quite often, Kwinter says, advertisers have an underlying strategic reason for launching a misleading comparative advertising claim beyond simply getting ads off the air.

‘They may want to hurt their competitor in the long run, or enhance their own position in the long run,’ Kwinter says.

He says what most do not realize is that it is quite hard to get an injunction – on average, more fail than succeed. Interlocutory injunctions are also temporary and are only effective until the case goes to trial and the matter is decided.

Kwinter also says that just because an injunction application fails does not mean there is an illegitimate claim of misleading advertising.

At the interlocatory injunction stage all the court has before it is affidavit evidence, with no witnesses.

Kwinter says all the court looks for is a ‘serious issue to be tried,’ it does not try to answer the question of whether advertising is misleading.

If the claim appears substantive enough, the court then looks at the question of ‘irreparable harm’ to the plaintiff if the advertising is not stopped – the hardest question to satisfy.

‘The court will not grant an injunction if it is satisfied, that even if the ad is misleading, the plaintiff could be compensated by damages at a trial later down the road,’ Kwinter says and adds this is where most injunctions fail.

‘The balance of convenience’ is another issue the court addresses, which determines who is hurt worse by a granted injunction, for example, a third party who might be affected by a pulled ad.

Also, if the ads have already run for a significant period, the court will weigh the usefulness of pulling them.

Elizabeth McNaughton, also a partner at Toronto law firm Blake Cassels & Graydon, says it is conceivable to lose an injunction and still proceed to trial.

Typically, McNaughton says it does not happen because by then – at least a year and a half later – the advertising campaign has been and gone.

Kwinter says some corporations will go to trial if the ad, and the continued running of it, can cause long-term harm.

A company may wish to seek damages and get a permanent injunction on the advertising through trial.

‘The practical reality is that a lot of these cases are decided at the interlocutory stage, but the unfortunate aspect of that is that a lot of these cases are being finally decided, not on all the evidence and not on a full review of all aspects of the advertising,’ Kwinter says.