Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Date of decision: 22 April, 2020
+ CS(COMM) 629/2016
RECKITT BENCKISER (INDIA) LTD. ..... Plaintiff
Through: Mr. Chander M. Lall, Sr. Adv. with Ms.
Nancy Roy, Adv.
Versus
HINDUSTAN UNILEVER LTD ..... Defendant
Through: Mr. Akhil Sibal, Sr. Adv. with Ms.
Pratyusha Priyadarshini, Adv.
AND
+ CS(OS) 237/2018 & IA No.4428/2018 (u/O XXXIX R-1&2 CPC)
RECKITT BENCKISER (INDIA) PRIVATE LIMITED .... Plaintiff
Through: Mr. Chander M. Lall, Sr. Adv. with Ms.
Nancy Roy, Adv.
Versus
HINDUSTAN UNILEVER LIMITED ..... Defendant
Through: Mr. Akhil Sibal, Sr. Adv. with Ms.
Pratyusha Priyadarshini, Adv
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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1. CS(OS) No.237/2018 came up before this Bench on 7 March,
2019, for hearing arguments on the application for interim relief and for
framing of issues. Finding, that the suit filed by the plaintiff against the
defendant was for permanent injunction to restrain the defendant from
airing an advertisement launched by the defendant of its product
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Lifebouy Soap on 2 April, 2018, on the ground of the same being
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 1 of 28
disparaging of the product Dettol Antiseptic Liquid of the plaintiff and
for ancillary reliefs and further finding that the plaintiff, till then was
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without any interim relief, it was on 7 March, 2019 enquired from the
counsels whether the impugned advertisement was still being
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telecast/published by the defendant and the hearing adjourned to 22
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July, 2019. On 22 July, 2019 the senior counsel for the plaintiff
informed that the impugned advertisement was last aired in December,
2018 and had not been aired thereafter by the defendant. The senior
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counsel for the defendant, on 22 July, 2019 stated that though the
advertisement had not been aired but the defendant should be at liberty
to air it at any time. He further stated that he had no instructions, when
the advertisement was last aired but agreed that as of that date it was not
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being aired. Hearing was adjourned to 3 September, 2019. On 3
September, 2019 the counsels were heard on the application for interim
relief and again some suggestions were made for amicable settlement
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and the hearing adjourned to 4 September, 2019. On 4 September,
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2019 no settlement could be arrived at and the hearing adjourned to 20
January, 2020.
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2. During the hearing on 20 January, 2020 reference was made by
the counsels to an earlier suit being CS(OS) No.1834/2013, since re-
numbered as CS(COMM) No.629/2016, by the same plaintiff against the
same defendant, also for permanent injunction to restrain the defendant
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from airing an advertisement aired for the first time on 3 June, 2012
and recording of evidence in which suit was underway. To determine,
whether the decision in CS(COMM) No.629/2016 would apply to
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 2 of 28
CS(OS) No.237/2018 as well, CS(COMM) No.629/2016 was also
directed to be listed before this Bench along with CS(OS) No.237/2018
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and the hearing adjourned to 7 February, 2020.
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3. On 7 February, 2020 the counsels were heard on the application
of the plaintiff in CS(OS) No.237/2018 for interim relief as well as on
the possibility of consolidating the two suits for trial, may be by
amending the issues in CS(COMM) No.629/2016 and the remaining
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hearing adjourned to 10 February, 2020, and thereafter to 12 February,
2020, when orders on the application in CS(OS)237/2018 for interim
relief and on the possibility of consolidating the suits for trial reserved.
4. CS(COMM) No.629/2016 was filed by the plaintiff in or about
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June, 2012 (as per amended plaint on 21 August, 2015) inter alia
pleading that (i) adding Detlol Antiseptic Liquid to daily bathing water
helps kill germs and increases protection against infection and illness
and this attribute is heavily advertised by the plaintiff to promote its
Dettol Antiseptic Liquid; (ii) the defendant had introduced television
advertisement for its Lifebouy Soap, with malicious intention, to
increase the market share of its Lifebouy Soap by adopting false
assertions and by tarnishing the goodwill and reputation of the plaintiff’s
product Dettol Antiseptic Liquid; (iii) the impugned advertisement
mocks and denigrates the plaintiff’s product as being completely
ineffective in warding infections and illness; (iv) thereafter it proceeds
to compare the defendant’s cosmetic toilet soap with the plaintiff’s
antiseptic liquid as being a ‘100% better germ protector’; (v) the
impugned advertisement wrongly shows the defendant’s ordinary toilet
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 3 of 28
soap to have superior germ fighting capabilities than the plaintiff’s
antiseptic liquid; (vi) virtually identical advertisement as the impugned
advertisement was issued by the defendant’s group company in South
Africa and the Advertising Standards Authority of South Africa had
directed the defendant’s group companies to withdraw the claims made
by it therein, as the defendant’s cosmetic soap did not and could not have
any germ killing capabilities, as falsely represented in the impugned
advertisement; on the contrary the plaintiff’s antiseptic liquid Dettol has
99.99% germ killing capacity; (vii) the impugned advertisement is
designed to give an impression that a cosmetic soap is more efficacious
than an antiseptic liquid and an antiseptic liquid being completely
ineffective to ward away germs; (viii) Lifebouy Soap is a listed cosmetic
under the Drugs and Cosmetics Act and Rules; hence comparing a
cosmetic soap to an antiseptic liquid and showing that the cosmetic soap
has better germ killing/removing capability, itself is a false and
misleading claim and disparages the entire category of antiseptic liquids
of which the plaintiff is the market leader; (ix) the advertisement
impugned herein (i.e. in CS(COMM) No.629/2016) was not the first
attempt by the defendant to denigrate or defame the plaintiff’s Dettol
brand; and, (x) in a yet earlier suit filed by the same plaintiff against the
same defendant, being CS(OS) No.1359/2007 this Court after full trial
had held against the defendant and interim relief claimed by the
defendant in RFA(OS) No.50/2008 preferred thereagainst had been
declined.
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 4 of 28
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5. CS(COMM) No.629/2016 came up before this Court first on 6
June, 2012 when the defendant being on caveat appeared and though the
same was entertained but no ad interim order sought granted. FAO(OS)
No.296/2012 preferred by the plaintiff against non-grant of ad
interim /interim orders in CS(COMM) No.629/2016 was disposed of vide
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order dated 11 July, 2012 by issuing a direction for expeditious hearing
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of the application for interim relief. Ultimately vide judgment dated 13
May, 2013, the application of the plaintiff for interim relief was
disposed of by directing the defendant to telecast the advertisement
impugned in CS(COMM) No.629/2016 only after deleting certain
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attributes thereof and vide subsequent order dated 13 August, 2013 the
following issues framed in CS(COMM) No.629/2016:-
“ (i) Whether the impugned advertisement is
disparaging to the plaintiff? OPP.
(ii) If the answer to the above issue is in the
affirmative then whether the main
advertisement is protected as principal speech
under the Constitution of India? OPD.
(iii) Relief.
and the parties relegated to evidence.
6. FAO(OS) No.343/2013 and FAO(OS) No.353/2013 preferred by
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the defendant against the judgment dated 13 May, 2013 were
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withdrawn on 5 May, 2014 with liberty to raise all grounds available
under the law before the Single Judge.
7. CS(OS) No.237/2018 was filed by the plaintiff inter alia pleading
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that (i) the defendant on 31 March, 2018 introduced a six second
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 5 of 28
advertisement of its Lifebouy Soap on digital media disparaging the
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plaintiff’s Dettol Antiseptic Liquid; on 2 April, 2018 the defendant
disclosed extended version of the said advertisement of 29 second
duration on one of the television channels; (ii) the defendant in the past
also, on two occasions had made similar unfair comparisons of the
plaintiff’s Dettol Antiseptic Liquid with its Lifebouy Soap and this Court
(in CS(COMM) No.629/2016) and the High Court of Calcutta had
passed orders against the defendant; (iii) the plaintiff has different
products under its brand name Dettol including Dettol Antiseptic Liquid,
Dettol Bar Soap, Dettol Liquid Hand Wash, Dettol Shower Gel, Dettol
Hand Sanitizer and Dettol Antibiotic Wipes; (iv) Dettol Antiseptic
Liquid is not intended to be a substitute for bar soap, shower gel or liquid
hand wash; it is a supplement to these products, to be additionally used
for germ killing capabilities; (v) not only does the advertisement of
Lifebouy Soap impugned in CS(OS) No.237/2018 makes false and
misleading claims and is intended to dissuade consumers from using
antiseptic liquid especially the plaintiff’s Dettol Antiseptic Liquid as a
supplement to bath soap while bathing but also unfairly compares the
antiseptic liquid, a drug under the provisions of Drugs and Cosmetics
Act, to a cosmetic; and, (vi) the advertisement impugned in CS(OS)
No.237/2018 is also violative of the code of ethics for advertising in
India laid down by the Advertising Standards Council of India.
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8. CS(OS) No.237/2018 came up before this Court first on 5 April,
2018 when the defendant, being on caveat, appeared. Vide ad interim
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order dated 6 April, 2018, while issuing summons/notice of the
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 6 of 28
suit/application for interim relief, it was ordered that the defendant may
telecast the advertise only after specified deletions therefrom. The
defendant preferred FAO(OS)(COMM) No.62/2018 against the said
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order and vide order dated 11 April, 2018 therein, the ad interim order
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dated 6 April, 2018 was set aside and the matter remanded to the Single
Judge to hear afresh the application for interim relief, after completion of
pleadings. Resultantly there is no interim order till date in CS(OS)
No.237/2018, though as aforesaid the advertisement impugned therein
was aired last in December, 2018 and is not being telecast since then.
However notwithstanding the same, the defendant desires this Court to
pronounce on the application for interim relief.
9. What emerges from the aforesaid narrative is that CS(OS)
No.237/2018 is the third suit of the same nature by the plaintiff against
the defendant before this Court, besides the proceedings in the Calcutta
courts and before the Authorities of South Africa. It is obvious that the
parties, using their financial prowess, are playing the game of litigation;
the defendant, inspite of not airing the advertisement impugned in
CS(OS) No.237/2018 now for the last about one and a half year and with
no intention to air the same in near future, is not wanting to make a
statement to, till the disposal of the suit not air the impugned
advertisement or to before intending to air the same again, give
reasonable notice to the plaintiff. Not only so, the defendant also objects
to decision of CS(OS) No.237/2018 in accordance with the findings
(after trial which is stated to be nearing completion) in CS(COMM)
No.629/2016 even though the issues framed in CS(COMM)
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 7 of 28
No.629/2016 are found to be omnibus, though of course with reference
to the advertisement impugned therein.
10. The need to detail the defence in the written statement of the
defendant to CS(OS)237/2018 is not felt since only the application for
interim relief therein is for consideration and further since the defence
relevant for adjudication of the application for interim relief would be
evident from the contentions hereinbelow recorded of the senior counsel
for the defendant.
11. The senior counsel for the plaintiff contended:-
(i) the Lifebouy Soap of the defendant, being a cosmetic, has
no germ killing ability; on the contrary the Dettol Antiseptic
Liquid of the plaintiff has 99.99% germ killing ability;
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(ii) attention was invited to the judgment dated 23 September,
2013 of the High Court of Calcutta in the suit filed by the
plaintiff against the defendant with respect to the then
advertisement of the defendant with respect to its Lifebouy
Soap, holding:-
(a) that the advertisement of the defendant did not show
the product Dettol Antiseptic Liquid of the plaintiff in
the proper perspective;
(b) the use of the defendant’s product Lifebouy is
predominantly for cleansing; on the contrary the
plaintiff’s product Dettol Antiseptic Liquid is
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 8 of 28
predominantly for germ eradication and is not
declared to be used as a cleanser;
(c) the defendant however claimed in the advertisement
that its product Lifebouy Soap has germ removing
capacity;
(d) the plaintiff’s product Dettol Antiseptic Liquid is
recommended for use as a supplement to bathing
soap;
(e) showing the plaintiff’s product Dettol Antiseptic
Liquid in an inappropriate dilution and context and
then declaring that it has no germ protection capacity
whereas the defendant’s product Lifebouy Soap has
nearly 100% germ removal capacity was disparaging
of the plaintiff’s product;
(f) therefore the then advertisement of the defendant was
unfair, prejudicial to the plaintiff and not with honest
intention and lowered the reputation of the plaintiff’s
trade mark, offending Section 30 of the Trade Marks
Act, 1999; and,
(g) restraining the defendant from showing the
advertisement or any version or adoption thereof in
any media till the disposal of the suit.
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(iii) drew attention to the judgment dated 14 March, 2014 of
the Division Bench of the High Court of Calcutta
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 9 of 28
dismissing the appeal preferred by the defendant and further
holding that Dettol Antiseptic Liquid of the plaintiff and
Lifebouy Soap of the defendant were unlike products and
comparison thereof was unfair;
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(iv) drew attention to the judgment dated 13 May, 2013 supra
on the application for interim relief in CS(COMM)
No.629/2016 and contended that what has been held therein
with reference to the advertisement impugned therein
applies to the advertisement impugned in the present suit as
well;
(v) the defendant in its written statement admits that the
plaintiff’s Dettol Antiseptic Liquid is not intended to be a
substitute for bar soap, shower gel or liquid hand wash and
is only a supplement to the same;
(vi) the defence of the defendant in CS(OS) No.237/2018 is the
same which has not been accepted in the earlier judgments
of the High Court of Calcutta and in the judgments of this
Court;
(vii) reliance was placed on Hindustan Unilever Limited Vs.
Reckitt Benckiser (India) Limited (2014) 207 DLT 713
(DB) being RFA(OS) No.50/2008 supra between the
parties, and it was contended that the defendant therein had
taken a plea that unlike products i.e. an antiseptic soap and a
cosmetic soap could not be compared; it was argued that the
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 10 of 28
defendant is now itself doing the same and cannot be
permitted to do so.
(viii) reliance was placed on Dabur India Limited Vs. Colortek
Meghalaya Private Limited (2010) 167 DLT 278 (DB) to
contend that untruthful advertisements are not permissible;
and,
(ix) reference was also made to Section 4 of the Drugs and
Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 and to the Drugs and Cosmetics
Act, 1940, to contend that there is a prohibition against
misleading advertisements relating to drugs, as Dettol
Antiseptic Liquid is.
12. One of the contentions of the senior counsel for the plaintiff being,
that the advertisement impugned in CS(OS) No.237/2018 is also
violative of the orders/judgments in earlier suits being CS(COMM)
No.629/2016 of this Court and the suit before the Calcutta High Court
relating to the same products, it was enquired from the senior counsel for
the plaintiff, how, for violation of an order/judgment already existing in
favour of the plaintiff, yet another suit was maintainable and whether not
the appropriate remedy available to the plaintiff was of execution or
under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908
(CPC). The senior counsel for the plaintiff contended that the said
remedies were not available and/or were not availed of since the
advertisement impugned in CS(OS) No.237/2018 was different from the
advertisement impugned in the earlier proceedings, of orders wherein
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 11 of 28
violation, in spirit, was argued. It was contended that the defendant was
otherwise in violation, having made only
minor/inconsequential/ineffective changes in the advertisement. At this
stage, the senior counsel for the defendant contended that the
advertisement impugned in CS(OS) No.237/2018 was compliant with the
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conditions stipulated in the judgment dated 13 May, 2013 on the
application for interim relief in CS(COMM) No.629/2016 .
13. It was also contended by the senior counsel for the plaintiff that
while the Dettol Antiseptic Liquid was subject to price control, Lifebouy
Soap, being a cosmetic was not subject to price control. Attention was
also drawn to the memorandum of FAO(OS)(COMM) No.62/2018
preferred by the defendant against the judgment on the application for
interim relief in CS(COMM) No.629/2016 to contend that what is being
argued now by the defendant before this Court was the case of the
defendant in appeal which was not pursued.
14. Per contra the senior counsel for the defendant contended (i) that
the arguments of the plaintiff now were the same as were made during
the hearing of the application for interim relief in CS(COMM)
No.629/2016 and which were not accepted and interim relief sought in
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terms whereof not granted in the judgment dated 13 May, 2013; (ii) that
the said judgment was not confined to advertisement impugned in
CS(COMM) No.629/2016 but was of general application qua the two
products; vide said judgment the advertisement impugned in
CS(COMM) No.629/2016 was not restrained and only certain changes
directed to be made therein and the advertisement impugned in CS(OS)
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 12 of 28
No.237/2018 is compliant of those directions; (iii) attention in this
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respect was also drawn to the observations in the earlier order dated 11
April, 2018 supra of the Division Bench against the earlier order dated
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6 April, 2018 granting ad interim relief to the plaintiff; (iv) though the
plaintiff earlier also had sought restraint against comparison, contending
the two products to be dissimilar but no such restraint was granted; (v) in
the earlier judgment of this Court, only the identification of the
plaintiff’s product in the advertisement of the defendant was restrained
and the advertisement of the defendant impugned in CS(OS)
No.237/2018 does not identify the comparative products as of the
plaintiff; (vi) the plaintiff did not prefer any appeal against the judgment
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dated 13 May, 2013 on the application for interim relief in CS(COMM)
No.629/2016; (vii) the advertisement impugned in CS(OS) No.237/2018
is what was permitted in the said judgment; (viii) that the advertisement
of the defendant impugned in CS(OS) No237/2018 targets those
consumers who are using antiseptic liquid only in their bath water and
are not using soap and promotes soap as opposed to antiseptic liquid; (ix)
the advertisement of the defendant impugned in CS(OS) No.237/2018 is
to encourage consumers to use soap and does not denigrate the product
of the plaintiff; (x) the plaintiff cannot be permitted to re-argue; (xi) the
advertisement impugned in CS(OS) No.237/2018 does not claim that the
plaintiff’s product Dettol Antiseptic Liquid does not have germ killing
ability; it rather says that the same will remove the germs only from the
bathing water; (xii) the judgment of the High Court of Calcutta is on
different facts and does not bind this Court; (xiii) the judgment of the
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 13 of 28
High Court of Calcutta, to the extent holding that the advertisement of
the defendant comparing two unlike products is bad, is in the teeth of the
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judgment dated 13 May, 2013 on the application for interim relief in
CS(COMM) No.629/2016 permitting such advertisement; (xiv) reliance
is placed on Dabur India Limited supra to contend that the plaintiff’s
claim of having in the 81.9% market share of the antiseptic liquid market
cannot mean the reference in the impugned advertisement to antiseptic
liquid to be a reference to the plaintiff; (xv) reliance is placed on Procter
& Gamble Home Products Vs. Hindustan Unilever Ltd. 2017 SCC
OnLine Del 7072, Dabur India Limited Vs. Wipro Limited 2006 SCC
OnLine Del 391, Marico Limited Vs. Adani Wilmar 2013 SCC OnLine
Del 1513, Havells India Ltd Vs. Amritanshu Khaitan 2015 SCC
OnLine Del 8115, Puro Wellness Pvt. Ltd. Vs. Tata Chemicals Ltd.
2019 SCC OnLine Del 10766 and Dabur India Limited Vs. Emami Ltd.
2019 SCC OnLine Del 7809 to contend that the advertisement being
commercial speech is protected and is to be restricted only if the same is
false, misleading, unfair or disparaging; (xvi) truthful comparisons are
permissible; and, (xvii) the defendant in the subject advertisement has
nowhere shown that a sick child becomes well after taking a bath with
the defendant’s soap and has not shown antiseptic liquid in a bad light.
15. I have considered the rival contentions.
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16. The High Court of Calcutta in judgment dated 23 September,
2013 inter alia held as under:-
“ADVERTISEMENT NO. – III
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 14 of 28
This advertisement does not show the product
of the plaintiff in the proper perspective. The
use of the defendant’s product is predominantly
for cleansing. The plaintiff’s product Dettol
Antiseptic liquid is predominantly for germ
eradication. It is not declared to be used as a
cleanser. The defendant, however, claims that
it’s product has germ removing capacity.
Moreover, the plaintiff’s product is
recommended for use as a supplement to
bathing soap, gel etc. Showing the plaintiff’s
product in an inappropriate dilution and
context and then, declaring that it has no germ
protection capacity whereas the defendant’s
product ‘Lifebuoy Soap’ had nearly 100%
germ removal capacity, was in my opinion
disparaging the defendant’s product. That too,
showing the context “while bathing” in small
font.
Therefore, the advertisement was unfair,
prejudicial to Reckitt not with honest intention
and aired at lowering the reputation of the
defendant’s trade mark, offending Section 30 of
the Trade Marks Act, 1999.
In those circumstances I pass an order of
injunction restraining the defendant from
showing the above advertisement or any version
or adaptation thereof in any media till the
disposal of the suit. The application G.A. 942
of 2013 connected with C.S. 92 of 2013 is
.”
allowed
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 15 of 28
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17. The Division Bench of High Court Calcutta in judgment dated 14
March, 2014 inter alia held as under:-
“The third advertisement was published in the
print media in such a fashion that a sentence
was divided into two halves. Even if we take
both parts together we would find, Lifebuoy
would claim better germ protection than
Dettol antiseptic liquid while bathing.
However, when we see the Lifebuoy soap, it
was claimed, Lifebuoy gives better germ
protection than ordinary soap. Dettol and
lifebuoy would have two different area having
two different effect. Lifebuoy is a cosmetic
whereas Dettol is an antiseptic liquid,
Lifebuoy is used during bath that one would
get the effect by rubbing it on the skin. Dettol
might claim that one would get good
protection in case they use diluted Dettol
while bathing. We are not concerned with the
advertisement of Dettol making such claim.
When it would come before us we would
definitely consider the same. These are two
unlike products, the way it was compared was
certainly an unfair attempt. Learned Judge
restrained the advertisement, we do not find any
scope to interfere.”
18. I thus enquired from the senior counsel for the defendant, whether
not the High Court of Calcutta vide judgments aforesaid and which have
attained finality, even though on applications for interim relief in a suit
which was stated to be still pending, has restrained the defendant from
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 16 of 28
comparing its Lifebouy Soap to the plaintiff’s Dettol Antiseptic Liquid
and if so, how could the defendant, in the advertisement impugned in
CS(OS) No.237/2018, compare the two.
19. I may in this context observe that I have in Procter & Gamble
Home Products Private Limited supra inter alia held that (i) the only
fetter on comparative advertising is that it does not unfairly denigrate,
attack or discredit other’s product; however while assessing so, the law
of defamation would apply; (ii) the fundamental right of advertiser under
Article 19(1)(a) has to be balanced with the constitutional right of the
competitor under Article 21 of the Constitution of India to the reputation
of its goods and the test of proportionality has to be applied; (iii) the
right to protect own reputation is not to be misunderstood as right to be
not spoken against or right to be not criticized; (iv) reliefs for
disparaging advertising have to be restricted to gross cases; (v) the
impact of the impugned advertisement on the consumer has to be seen;
and, (vi) the courts are not equipped to return a finding on comparative
merits of two competing products and if are to get into the said domain,
would necessarily have to return a judicial determination, which of the
two competing products is better. However the question of applying
what was held therein, while adjudicating the application for interim
relief in CS(OS) No.237/2018 does not arise since there have been
earlier litigation between the parties herein and the orders/judgments
wherein bind the parties and the test to be applied herein would have to
be whether the advertisement impugned in CS(OS) No.237/2018 violates
the reasoning in any of the judgments/orders in the earlier litigation.
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 17 of 28
20. The senior counsel for the defendant contended that though the
High Court of Calcutta in the judgments aforesaid held the two products
to be different and comparison thereof to be unfair but this Court in the
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judgment dated 13 May, 2013 in the application for interim relief in
CS(COMM) No.629/2016 did not hold so and rather permitted
comparative advertising of the two products and only required the
defendant to make certain changes/deletion in the advertisement
impugned therein. It was argued that this Court thus cannot on the basis
of the judgments of the High Court of Calcutta restrain comparison in
the advertisement impugned in CS(OS) No.237/2018.
21. To consider the aforesaid contention, it is deemed apposite to set
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out below the relevant part of the judgment dated 13 May, 2013 on the
application for interim relief in CS(COMM) No.629/2016:
“4.
iv. Plaintiff is the manufacturer of the famous
antiseptic liquid DETTOL for over 70 years. ‘Dettol’
antiseptic liquid has an unparalleled medical history
of capturing over 85 % of the market in India in this
segment.
v. The active ingredient of ‘Dettol’ liquid is
chloroxylenol (PCMX). The other ingredient includes
isopropyl alcohol, pine oil, castor oil soap, caramel,
water basically used for first aid purpose. The
exclusive attribute of the said trademark is – its amber
gold colour and the fact that it becomes milky when
diluted in water. Also, the packaging of DETTOL is
distinct, having a sword on the pack that acts as a
mnemonic for fighting against germs and infection.
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 18 of 28
XXXXXXX
x. The peculiar features that have been copied are:
a. visual of a liquid that is being poured is of the
same colour as that of the plaintiff’s product.
b. The liquid is poured from a bottle which is
virtually identical to that of the plaintiff’s
antiseptic liquid bottle.
c. The liquid when poured into water becomes
milky exactly like the plaintiff’s product.
d. Thereafter, the advertisement claims plaintiff’s
product to be completely ineffective in warding
off germs whereas shows that lifebuoy gives
“100% germ protection.”
xi. Virtually identical advertisement was issued by the
Defendant’s group in South Africa and by a detailed
order passed by the Advertising Standards Authority
of South Africa, the respondent therein (defendant
herein) was directed to withdraw the claims made by
it.
xii. The language used by the father of the sick child in
the advertisement emphasising on “nahane ke paani
mein ‘do dhakkan’ antiseptic liquid” clearly indicates
towards Dettol.
xiii. No other liquid except ‘Dettol’ create a cloud
formation when diluted in water.
xiv. The disclaimer flashing below the screen in the
television commercial is also very vague and blurred.
63. Adverting to the facts of the present case, having
gone through the commercial not only in its text (as
reproduced above) but also having watched it on a
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 19 of 28
DVD, the question here is whether the advertisement
disparages or denigrates the antiseptic liquid of the
plaintiff and also whether it only seeks to project the
superiority of the defendant's LIFEBUOY soap over
an ordinary antiseptic liquid? The advertisement
begins with the scene showing a sick child lying with a
few toys around in the display and the doctor entering
the house and commenting that he has been invited yet
again. Thereafter, the doctor inquires about the
hygiene habits of the child and the doctor asks: “kya
ye nahata hai roz”, to which the mother of the child
replies: “haan nahane ke paani mein do dhakkan
antiseptic liquid be daltehai” and the doctor mocking
and ridiculing in reply says:“aap bhee nahane mein
sirf do dhakkan, use balti toh bimar nai padegi, paani
ke kitanu shayad nikal jayen, lekin body ke, yeh yahan
se yahan , fir zukam, khansi, flu” . In the meanwhile,
the commercial runs to demonstrate a lady pouring
brown liquid with a tilted bottle in the bucket of water.
The mother of the child then proceeds to ask the
doctor: “to nahane mein isse better? And the doctor
replies:“100% germ protection, Advanced Lifebuoy”
and then appears two different shields of protection,
green signifying Dettol and Red signifying Lifebuoy
wherein , the green side is left with a few germs and
the red shows “kill of all”. Once again lifebuoy is
shown to have excellent germ killing capability whilst
an antiseptic liquid is completely ineffective. The
voice-over also indicates the same. It is obvious that
the advertisement displays the said so called
"antiseptic liquid" in bad light and as something
harmful. Thereafter, the advertisement proceeds with
the introduction of the defendant's LIFEBUOY soap
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 20 of 28
and the manner in which it spreads a protective red
wall thereby removing and dissipating the germs.
65. With aforesaid discussion, it is ostensibly clear
that the advertisement disparages the plaintiff's
antiseptic liquid and it is not an advertisement which
seeks merely or only to promote the superiority of the
defendant's „LIFEBUOY‟ soap over an ordinary
antiseptic liquid. When the commercial is displayed
before the public at large, the basic principle that is
followed is that the public tries to find the connectivity
and the impact that advertisement probably creates on
them. If ‘X’ would raise the standards of its product by
claiming the rivals products „Y‟ to be bad and not
effective displaying similar/ comparative attributes of
the two, the same would be bad in law. If it were a
case of mere promotion of superiority of the
defendant's product, alone, the plaintiff would not
have had a case as that would have only betokened a
permissible "better" or "best" statement. The
advertisement comprises of two parts; one which
denigrates and disparages the product of the plaintiff
and the other which promotes the purported
superiority of defendant's LIFEBUOY soap. There is
thus a hint of some malice involved in the commercial
in respect of the defendant’s product - indeed, it would
be appropriate to delete certain relevant attributes of
the defendant’s advertisement which clearly hits on
the plaintiff’s product and portrays the same in bad
light. Without a doubt comparative advertising is
beneficial as it increases consumer awareness and
therefore, it is permissible but not by pulling down the
reputation of your competitor by showing its product
in debauched light. Moreover, advertising is a
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 21 of 28
medium through which an advertiser can establish his
brand in the market, but at the same time there are
certain set of laws that cannot be deserted.
Denigrating or causing direct harm to one’s product
which has attained appreciation in its genre in terms
of usage and application, would amount to slander,
which would also cause great prejudice to the public
interest, as the question is not of deciding which
product is better, but also of public awareness.
Because, misleading and disparaging advertisement
would not only mellow down the faith of the public but
would also result in misleading them.
68. Therefore, I am of the view that the defendant
can telecast the advertisement only after deleting the
following attributes as under:
a. remove the ‘toys’ in the advertisement.
b. remove the phrase “two dhakkans” and
the particular portion featuring the lady
shown pouring liquid in the bucket by
holding the bottle of the antiseptic liquid
in her hand.
c. Remove the shot showing the cloud
formation.
d. Since green is the colour majorly
associated with ‘Dettol’, therefore also
change the colour scheme showing the
comparison between the two products in
the television commercial and change
the green colour to a different shade.
69. I am, therefore, inclined to grant ad interim
relief to the plaintiff and as against the defendant
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 22 of 28
thereby restraining the defendant from telecasting the
impugned advertisement. However, the defendant will
be well within its rights to telecast the same only after
following the conditions as envisaged in paragraph 68
(a) to (d) of the said judgment. Defendant is also
restrained from inserting or adding any such kind of
piece/feature in the advertisement which would
otherwise directly or indirectly result in disparaging
the said product of the plaintiff till the final disposal of
the case at hand.”
22. In my view, on a reading of the relevant part aforesaid of the
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judgment dated 13 May, 2013 does not show this Court to have held
anything different from what has been held by the High Court of
Calcutta in the judgments aforesaid, for it to be said that the view of this
Court is irreconcilable to that of the High Court of Calcutta. It is also
significant that while the appeal preferred by the defendant against the
judgment of the High Court of Calcutta was dismissed on merits by the
Division Bench of that Court, the appeal preferred by the defendant
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against the judgment dated 13 May, 2013 on the application for interim
relief in CS(COMM) No.629/2016 of this Court, was withdrawn by the
defendant.
23. I am also of the view that the principle of comity of courts [ India
Household & Healthcare Limited Vs. LG Household & Healthcare
Limited (2007) 5 SCC 510 and Sterling Agro Industries Limited Vs.
Union of India AIR 2011 Del 174 (FB)] requires this Court to, while
adjudicating the controversy as has arisen, endeavour to show due
respect to the judgments of the High Court of Calcutta especially when
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 23 of 28
relating to the same products and entailing similar issue as for
adjudication herein. If this Court were to expressly permit the defendant
to, notwithstanding the judgments of the High Court of Calcutta
restraining comparative advertising, not grant any injunction in CS(OS)
No.237/2018, thereby permitting the defendant to compare its product
with that of the plaintiff and which two products have been held by the
High Court of Calcutta to be dissimilar, the same would amount to this
Court permitting the defendant to violate the order of the High Court of
Calcutta. The judgments/orders of the High Court of Calcutta though
may not bind this Court, bind the defendant.
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24. I may in this context also notice that the judgment dated 14
March, 2014 of the Division Bench of the High Court of Calcutta is
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subsequent in point to the judgment dated 13 May, 2013 of this Court
on the application for interim relief in CS(COMM) No.629/2016.
25. The senior counsel for the defendant in this context referred to the
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judgment dated 11 April, 2018 of the Division Bench of this Court in
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FAO(OS) (COMM) No.62/2013 preferred against the order dated 6
April, 2018 of ad interim injunction in CS(OS) No.237/2018 and
wherein the judgments aforesaid of the High Court of Calcutta were
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noticed and inspite of the same the order dated 6 April, 2018 of ad
interim injunction was set aside.
26. Undoubtedly so. However the Division Bench in the judgment
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dated 11 April, 2018 supra set aside the order dated 6 April, 2018 only
on the ground that the same had been passed without completion of
pleadings and while remanding the application for interim relief in
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 24 of 28
CS(OS) No.237/2018 for decision afresh, did so with liberty to the
parties to raise all grounds available, as clarified in subsequent order
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dated 1 May, 2018 in Review Petition No.183/2018 preferred with
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respect to judgment dated 11 April, 2018. In view of the same no
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benefit can be taken by the defendant of the judgment dated 11 April,
2018.
27. The defendant, in the advertisement impugned in CS(OS)
No.237/2018 having compared its Lifebouy Soap to plaintiff’s Dettol
Antiseptic Liquid (as evident from use of the words “USSE STRONG),
the plaintiff has a prima facie case. Even otherwise I find the
advertisement impugned in CS(OS) No.237/2018 to be violative of the
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spirit of the judgment dated 13 May, 2013 on the application for interim
relief in CS(COMM) No.629/2016; vide the said judgment, hint of
malice was found in the then advertisement of the defendant showing
defendant’s Lifebouy Soap to be having excellent germ killing capability
whilst showing an antiseptic liquid in bad light and as something harmful
and completely ineffective. In the advertisement subject matter of
CS(OS) No.237/2018 also, the female protagonist shown acting as a
doctor is shown as dissuading the male protagonist from pouring
antiseptic liquid in bath water and further shown to be claiming that
adding antiseptic liquid in the bath water will leave germs on the body
while Lifebouy Soap will remove all the germs. The advertisement does
not claim that both, antiseptic liquid in bath water and soap should be
used. The advertisement impugned in CS(OS) No.237/2018 also has the
same hint of malice albeit in different form, as existed in advertisement
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 25 of 28
impugned in CS(COMM) No.629/2016 and has the same impact, which
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was restrained vide judgment dated 13 May, 2013 in CS(COMM)
No.629/2016.
28. Needless to state that once the advertisement impugned in CS(OS)
No.237/2018 is found to be prima facie disparaging of the product of
the plaintiff and found to be in violation of the earlier orders/judgments
binding on the defendant, the plaintiff will suffer irreparable loss and
injury unless interim relief sought is granted.
29. The balance of convenience is found to be in favour of the
plaintiff and against the defendant since the defendant for the last one
and a half years is not even airing the advertisement.
30. It is not as if these advertisements are aired in a particular city
only. The advertisements are aired on television channels having
national coverage and even if not having national coverage, are aired on
various other electronic platforms having viewership throughout the
country. It is thus not as if the defendant, in Calcutta would be bound by
the judgment of the Calcutta High Court and in Delhi would be entitled
to act in contravention thereof.
31. I thus allow IA No.4428/2018 of the plaintiff under Order XXXIX
Rules 1&2 of the CPC in CS(OS) No.237/2018 by restraining the
defendant till the decision of the suit from airing the subject
advertisements.
32. That brings me to the only other aspect of adjudication at this
stage i.e. whether CS(OS) No.237/2018 is to be separately tried or the
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 26 of 28
finding therein is to be returned in accordance with the findings after
trial in CS(COMM) No.629/2016.
33. In this context I highlight that the senior counsel for the defendant
during the hearing has contended that the directions contained in the
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judgment dated 13 May, 2013 on the application for interim relief in
CS(COMM) No.629/2016 are of general application and not confined to
the advertisement subject matter thereof as well and has yet further
contended that the advertisement impugned in CS(OS) No.237/2018 is
compliant with the conditions in the said judgment. The senior counsel
for the defendant having contended so, it follows that the findings on the
issues aforesaid framed in CS(COMM) No.629/2016 on the basis of trial
therein, would govern the outcome of CS(OS) No.237/2018 as well and
there is no need for separate trial in CS(OS) No.237/2018.
34. However since no specific issues has been framed in CS(OS)
No.237/2018 on the plea of the plaintiff, of the products of the plaintiff
and the defendant being dissimilar the defendant is not entitled in
advertisement of its product compare the same with the product of the
plaintiff, it is deemed appropriate to frame the following additional
issues as arising for consideration in both CS(COMM) No.629/2016 as
well as CS(OS) No.237/2018:-
(iv) Whether the product Dettol Antiseptic Liquid of the
plaintiff is of a different genre and class then the product
Lifebouy Soap of the defendant so as to be not fit for
comparison with the product Lifebouy Soap of the
defendant? OPP
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 27 of 28
(v) Whether the comparison in the advertisement impugned in
CS(COMM) No.629/2016 and in CS(OS) No.237/2018 of a
antiseptic liquid with a bath soap, is unfair and amounts to
disparagement of the product of the plaintiff? OPP
35. It is clarified that the issue framed in CS(OS) No.237/2018 qua
reliefs of damages etc. other than those of injunction would include the
reliefs owing to damages if any suffered by the defendant on account of
advertisement impugned in CS(OS) No.237/2018 also.
36. It is further clarified that while granting costs if any of the suit in
pursuance to the findings in the consolidated judgment in CS(COMM)
No.629/2016 and CS(OS) No.237/2018, the costs till this stage in
CS(OS) No.237/2018 would also be included.
37. It is yet yet further clarified that pursuant to the consolidation of
the two suits, the plaintiff shall be entitled to file additional affidavit/s of
examination in chief either of the same witnesses as already examined or
of additional witnesses. CS(COMM) No.629/2016 and CS(OS)
No.237/2018 having been so consolidated for the purposes of trial and
further proceedings, to be hereafter listed together on each and every
date of hearing.
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38. List for further appropriate orders on 16 June, 2020.
RAJIV SAHAI ENDLAW, J.
APRIL 22, 2020
‘pp’
CS(COMM) No.629/2016 & CS(OS) No.237/2018 Page 28 of 28