Although it was a “not defamatory” verdict on the facts, the recent case of ICN Photonics and Dr M Patterson is a reminder that knocking a competitor’s product can defame its manufacturer.
Topic: Trade Libel
Who: Dr Mervyn Patterson v ICN Photonics Limited
When: March 2003
Where: The Court of Appeal, Royal Courts of Justice, Strand, London WC2
What happened:
ICN Photonics manufactured the Nlite Laser Treatment System for lessening the appearance of wrinkles. Dr Patterson was a medical practitioner practising as Woodford Medical Services.
On 5 February 2002 Dr Patterson wrote a letter to customers of the Elite Health & Beauty Salon in Leamington Spa. The letter read:
"Woodford Medical is withdrawing from Elite Healthy & Beauty. I have discovered that the owner of Elite has been underhand and disloyal towards me over the last few months and I have therefore decided to withdraw my services from this salon.
As a leading aesthetic doctor, I am not prepared to risk my reputation in being associated with use of the Nlite Laser. The distributors of this laser have recently been declared bankrupt and in my opinion the level of consumer satisfaction with this system is very low. It is indeed surprising that Warwickshire Health Authority have allowed its introduction into the area without any medical supervision.
I remain committed to providing high quality aesthetic treatments that show significant results …… I regularly hold clinics in the following areas ….. "
The proceedings in front of the Court of Appeal were for both libel and "slander of goods".
The libel strand of the claim was to the effect that because ICN Photonics was the manufacturer of the laser system referred to in the letter, ICN itself as a company was libelled.
The "slander of goods" claim was, in essence, that the words in the letter falsely and maliciously disparaged the Nlite Laser System.
The Court of Appeal's judgment focused on the defamation claim, since Dr Patterson was urging the Court to take the view that the letter complained of was not capable of bearing any meaning which was defamatory of ICN Photonics.
If Dr Patterson were successful in this argument, then the libel aspect of the proceedings would be struck out.
ICN Photonics argued that the letter carried the clear implication that ICN Photonics had known that the laser needed medical supervision and that they had sold it to people who were unfit to use it.
The Court of Appeal certainly accepted that it was possible for words criticising a product (perhaps in a comparative advertisement) to reflect adversely on the manufacturer or his conduct of his business so that the reference could be a libel on the manufacturer. However, one had to ask the question whether the words were reasonably capable of conveying "a personal imputation upon [the manufacturer] either upon their character or upon the mode in which their business is carried on".
Applying these principles to the facts before them, the Court of Appeal felt bound to grant Dr Patterson's appeal. They could find nothing in the letter which suggested or implied that ICN Photonics was responsible for the introduction of the laser system or for its use. The owner of the salon was referred to, as were the distributors of the laser and the health authority, but not the manufacturer. No action on the part of the manufacturer was referred to and one simply could not get from the words in question an inference of responsibility on the part of the manufacturer.
As a result, the libel claim fell away and the case continues on the slander of goods aspects.
Why this matters:
Although this verdict underlines the fact that it is not necessarily going to be easy, it does illustrate that denigratory statements in relation to a competitor's products in comparative advertising could theoretically give rise to libel proceedings as well as perhaps trademark infringement or malicious falsehood claims.
