Softest Diapers is one of two leading producers of diapers for infants. It has spent several years researching and testing a new brand of super-absorbent diaper. It is now devising an advertising campaign that will make direct comparison with its competitor’s products. The marketing team has spent months comparing the two lines of products and genuinely believes that the new Softest diapers absorb significantly more moisture than do the equivalently priced products of the competitor. The team has asked the scientists to confirm their results, and after several months of testing, the scientists report that there is, on average, a 10 percent increase in absorbency.
The campaign is an immediate success. The competitor, recognizing the threat, immediately seeks an injunction to stop this campaign under the provisions of section 36 of the Competition Act. What provisions of the act and what arguments will the competitor rely upon? What will Softest use in its defence? What are the possible outcomes?