Kailash Gambhir, J.
IA No. 11467/2012 in CS (OS) No. 1834/2012
1. By this order, I shall dispose of the application filed by the plaintiff under order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908 seeking ad interim injunction against the telecast of a television commercial of defendant''s Lifebuoy Soap, which as per the plaintiff is disparaging and denigrating the reputation and goodwill of the plaintiff in the commercial market. The plaintiff has filed the present suit for permanent and mandatory injunction, being aggrieved by the defendant''s television commercial which allegedly depicts a child being sick because of the usage of Dettol as an antiseptic liquid in bathing water. The advertisement starts with the doctor entering the house of a sick child where he inquires about the hygiene habits of the child from his parents and also if the child takes bath regularly. To which the parents respond in affirmative and explain that they even dilute "2 dhakkans" of antiseptic liquid in the bucket of water. The next screen shot shows liquid being poured into the bucket of bathing water, the bottle of which is virtually identical in shape to the bottle used by the plaintiff for its ''Dettol'' antiseptic liquid. The liquid when poured into water becomes milky (cloudy) exactly like the plaintiffs product, which according to the plaintiff is the exclusive feature of the product. The advertisement thereafter proceeds to show that the plaintiffs product is completely ineffective in warding off infections and illness, which as per the plaintiff is a malafide on defendant''s part, trouncing the goodwill of the plaintiff in the market. It further proceeds to compare the defendant''s cosmetic toilet soap with the plaintiff''s antiseptic liquid as being "100% Better germ Protector". It is averred that intention behind the commercial is malicious, especially in view of the trade literature which shows that Dettol captures 85% of the market and is a market leader in the segment of antiseptic liquid being sold in India.
2. With the liberalization and globalization of the Indian economy, firms have been aggressively and vigorously promoting their products and services. In a comparative environment, every representation of a product or service is about what ''others are not.'' These practices raise questions about candour and fairness of representation of products and services. In our country, the advertising industry in order to reconnoitre and promote a particular product, does not hold back in spending millions of dollars on advertising and marketing. Advertising is a subsection of marketing, a form of communication intended to persuade people to purchase the products or the services of a particular brand. The discerning fact is that in such a competitive market, effective advertising techniques are being incorporated to promote one''s product with addition of high profile names like various actors and renowned personalities, nonetheless it is an indubitable fact that we get swayed by the reflecting names in the advertisements and tend to develop a parlous connect with the actors endorsing the products as they are the idol for their aficionados. Through the entire process, television makes a major contribution, beginning with awareness, where it makes its greatest impact. When spoken of media boosted awareness, a survey shows that 43% of those questioned said television, as in our society especially the middle class, relates highly to the television promotions. It is one of the influential modes that monitors and captures the major segment of the society. And particularly when the product is being endorsed by a well-known cinestar, the advertisement campaign or visual media creates an immediate impact on the viewers and possibly purchaser''s mind. We as mere viewers easily get blind folded and ''duped''. Therefore, this medium of promotion should be used very carefully and painstakingly, wherein in the garb of promoting one''s product, it has no right to disparage or denigrate its competitor''s product. Therefore, when any such discrepancy is noticed, the issue in question has to be looked from the view point of an ordinary person of average intelligence.
3. A BRIEF CONSPECTUS OF FACTS, AS PER THE PLAINT:
i. The plaintiff (Reckitt Benckiser) is an internationally renowned corporation and through its subsidiaries and affiliate companies operates in several countries around the world.
ii. The business comprises of various consumer and healthcare products including antiseptic liquid, toilet care products, surface care products, pharmaceuticals, insecticides, and food products which bear world famous trademarks including Harpic, Dettol, Mortein, Cherry Blossom.
iii. Incorporated on July 5, 1951 Reckitt Coleman and Benckiser, pursuant to the world wide merger between Reckitt Coleman Plc and Benckiser, a Dutch company, the name of the Plaintiff changed from Reckitt & Coleman India Ltd. to Reckitt Benckiser (India) Ltd.
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.
vi. ''Dettol'' has a vast usage, it can be added to bathing water in order to kill germs, used for shaving purposes, nappy wash, surgical, medical, midwifery and epidemics, first aid purposes etc, owing to the popularity of the product, the plaintiff has launched a website by the name-www.dettol.co.in.
vii. The sales figure of the plaintiff''s DETTOL Antiseptic Liquid in the market for the last three years is as follows:
viii. Television commercial introduced by the defendant is disparaging the antiseptic liquid of the plaintiff by comparing it with its lifebuoy bar soap, defendant''s product.
ix. The impugned advertisement features all the aspects which clearly demonstrate that the defendant has copied the peculiar features borne by the plaintiffs product and in order to attain market recognition over the plaintiffs product, defendant has tried to disparage the plaintiff''s product.
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.
4. A BRIEF CONSPECTUS OF FACTS, AS PER THE WRITTEN STATEMENT:
i. No reference to Dettol antiseptic liquid has been made in the impugned advertisement and the impugned television commercial contains no reference to the brand name or product of the plaintiff.
ii. The assertions of the plaintiff in its plaint are baseless and their fallacy is evident from the snapshots of the advertisement.
iii. Shape of the bottle shown in the impugned advertisement is different from that of the plaintiff and the shoulders of the bottle do not possess a continuous curve rather there is a square curve that angles at the edges.
iv. Right from drinks to refreshments to cleaning liquids, clouds of various colours are formed upon their being mixed with water. As a matter of fact, such clouds are formed when many other products are mixed with water such as comfort fabric conditioner, milk etc. Therefore, the cloud formation is not peculiarly associated to the plaintiff''s product.
v. The impugned advertisement also carries the disclaimer that "graphic visualization does not represent any branded antiseptic liquid in the market. Characteristic of generic antiseptic liquid."
vi. Label shown in the advertisement is white in colour, and not white green as contented by the plaintiff.
vii. Bathing with lifebuoy total soap and water removes more germs than bathing with diluted antiseptic liquid.
viii. The defendant''s admit that 53% of household at some point use only antiseptic liquid diluted in water for bathing purposes.
ix. The references to the order passed by the Advertising Standards Authority, South Africa is irrelevant.
5. Addressing arguments on the present application, Mr. Lall, learned counsel for the plaintiff submitted that the present case is filed on the three principle grounds: (i) the advertisement is against the public interest, (ii) generic disparagement of all the antiseptic liquids of which the plaintiff has a 85% market share, finally (iii) disparagement of the plaintiffs Dettol antiseptic liquid. Learned Counsel for the Plaintiff further added that the plaintiff is the owner of DETTOL, which is an antiseptic liquid, used for killing germs whereas Lifebuoy soap is a cosmetic product under the Drug & Cosmetic Act, being a cosmetic product it does not bear the germ killing qualities and hence, comparing the two different products is out of the pretext of law.
6. Learned counsel further submitted that as far as antiseptic liquids are concerned, DETTOL rules over 85% of the market, Savalon 8.4% and Suthol 4.5%, in total 97 % of the market share is captured by these three antiseptic liquids and the survey for the same is placed on record. Referring to Page 2 of the plaint, which displays the screenshots of the advertisement in comparison to an antiseptic liquid, learned counsel submitted that only ''Dettol'' creates a clouding effect when poured in water and this is the exclusive feature stomached by the product that makes it so popular in the market and known to the consumers. Ld. Counsel further submitted that on page 2 itself the various antiseptic liquid bottles are shown, the recreation of Savalon and Suthol bottles-which are completely different if compared to ''Dettol'' and on a careful perusal, it would manifest that the bottle shown in the advertisement is quite similar to that of Dettol, it''s quite evident from the structure that it''s not Savalon, Suthol, or any other bottle of antiseptic liquid but ''Dettol''. The bottle of ''Dettol'' is so similar to that of the displayed one that the consumer would not be able to distinguish between the two and would presume the comparison is being made to the plaintiffs product. Also, the label is not clearly visible but the shape of the label, the curves are exactly similar and any amateur consumer would grasp the same to be identical in features to that of Dettol antiseptic liquid.
7. Counsel further submitted that the liquid inside the bottle is almost same in colour (Amber color), whereas SUTHOL is different (proper green) and Savalon is orange. Therefore, the consumers worldwide would definitely associate themselves to the product and the colour presence, they can relate so as to what is the colour of Dettol. Counsel further submitted that the manner in which the lady holds the bottle in the advertisement and tilts it towards the bucket of water is similar to the advertisement of ''Dettol'' in particular, the design/label is white in colour which is same as that of the bottle of ''Dettol'', depicting another peculiar aspect of the two.
8. Further, elaborating on the impugned advertisement, counsel submitted that the boy is repeatedly falling sick and compelling the parents to call the doctor, the doctor comes and asks the parents--"Does he take bath every day?", In reply the parents say--"Yes, we also put Two caps of antiseptic liquid in the bucket of bathing water". The Counsel submitted that to the general awareness of the public and going by the statistical report and survey, the liquid that the parents are referring to, can nonetheless be ''Dettol'' as Dettol alone has captured 85% of the market, this in itself constitutes gross disparagement.
9. It is also the case of the plaintiff that the clouding effect, frequently used in the plaintiff''s advertisement is the centerpiece of the whole story board, and is a peculiar attribute borne by the plaintiffs product, a white cloud with the black background is an exclusive characteristic of the plaintiffs advertisement, which the defendants have copied and infringed upon, though there is a difference of colour (here the colour is yellow) and it''s not a white cloud, however another important aspect is that Dettol is the only antiseptic liquid which bears this characteristic, none of the other antiseptic liquids so far in the knowledge of the plaintiffs bear this exclusive attribute of being transformed into the shape of cloud once diluted in water. The following points out, that the defendant in their advertisement has copied all the peculiar features borne by the plaintiffs advertisement or its product, clearly demonstrating that it is the plaintiffs product that is being targeted and disparaged, following are the exclusive features that similar in the impugned advertisement:
a) Cloud formation
b) Sick child
c) Lady pouring the liquid from the bottle
d) toys
10. Counsel further submitted that disparagement of the antiseptic liquid also lies where the doctor in the advertisement says-"ONLY TWO DHAKKANS", and that is the cause of sickness of the child. Counsel further submitted that it is a direct attack on the plaintiff''s product. Counsel also submitted that in the Written Statement, the defendants have admitted that 53% of the population use antiseptic liquid in their bathing water.
11. Counsel for the Plaintiff further submitted that in the judgment/order passed by the Advertising Standards Council, South Africa, which is a statutory body, vide order dated 30.05.2012 has restrained the public display of defendant''s advertisement. There also the same clouding effect was shown, which was white and in India it has been made yellow only after suffering an injunction in South Africa. Learned Counsel further submitted that the said order is under challenge, though there is no stay.
12. Learned Counsel further submitted that the word "dhakkan" has a very adverse connotation in Hindi language, at the very behest that Dettol is the only antiseptic liquid capturing the major market and the only antiseptic liquid with the similar advertisement who promotes the liquid by showing that the usage of Dettol is not just restricted to bathing water, but it is quite vast, in hospitals, for hygiene, to maintain clean surroundings etc. Dettol is used in almost every genre in order to maintain proper hygiene and clean atmosphere.
13. Elaborating on the attributes of the plaintiff''s advertisement, Counsel submitted that in Dettol''s advertisement, the toys are lying on the side of the sick child, and it goes like, the doctor says "if you must not be washing your child''s toys with Dettol that is why he/she is falling sick" and the similar picture is framed even in defendant''s advertisement wherein the toys are lying next to the sick child. The whole diagnosis is based on bathing, in plaintiff''s advertisement the germs turn into a green colour and die, in the defendants advertisement also the germs are shown in green but they do not die, rather in the red (lifebuoy) shows all the germs are killed. Counsel further submitted that Lifebuoy only takes care of the allergens, just rubs off the germs from the body; it''s a cosmetic product and not an antiseptic formula. In the ''lifebuoy'' advertisement, it is shown that once the child takes bath with lifebuoy, he gets well, as the doctor says in the advertisement that "Lifebuoy antiseptic liquid se zyada kitanu nikalta hai." Counsel further submitted that the product of the defendants is highly misrepresented; it''s a complete mischief, slack tactics to promote his product by disparaging plaintiff''s goodwill in the market and the advertisement of the defendant''s ends--"10 infection wale kitanu ek suraksha", is completely hypothetical, illusionary, not true, saying 100% better protection than any other antiseptic liquid which is a frivolous and vexatious representation of their product.
14. Learned counsel further submitted that the order of the Advertising Standards Council shows basically how the two products have been substantiated and if it''s been done in a similar manner, then the goods of the latter cannot suffer at the behest of the recent one.
15. Counsel further going into the technicalities, submitted that 8% of lifebuoy sample concentration is being compared to 33% of plaintiffs product, antiseptic liquid DETTOL, the title of the testis MICRO CHEM SILICURE, as per which:
An antiseptic liquids germ kill capability is 1:1500 i.e. 33 percent, in the reports as shown by the defendants, which is a clear indication that its plaintiffs product, as behind DETTOLS bottle it''s clearly shown that it has germ kill ability as that of 33%. At the same date, same laboratory, you take 8% lifebuoy sample concentration to show its germ kill capabilities, kills all the germs, so it''s a clear admission on the part of the Defendants that the comparison is being made with the said product.
Learned Counsel thus submitted that there has been a gross misrepresentation wherein the defendant has shown a crooked way of comparison, an honest comparison is not bad in law, but disparaging the plaintiff''s product with false pleas and display is wrong and not acceptable.
16. In support of his arguments, Counsel for the plaintiff placed reliance on the following judgments:
a)
b)
c)
d)
e)
f)
g)
17. Per contra, refuting the arguments of the plaintiff, Mr. Sandeep Sethi, learned Senior Advocate submitted that the commercial advertisement actually depicts ''two dhakkans'' of antiseptic liquid in a bucket full of water may sanitize the water but would not clean the body, what is better than diluting ''two dhakkans'' of liquid is a bath with defendants soap. Therefore, the quantity of ''2 dhakkans'' does not give you hygienic bath, so for a better bath, the use of defendant''s soap recommended.
18. Ld. Senior Counsel further submitted that Principle of disparagement, requires the plaintiff to establish four aspects:
a) The impugned advertisement must refer or relate to the plaintiffs product.
b) The statement made should be false altogether
c) That the statement should be maliciously made (intent to injure)
d) Plaintiff should show the actual damage suffered by the impugned advertisement.
19. Based on the above connotation, the learned senior advocate submitted that:
a) Impugned advertisement does not satisfy the first test as it nowhere relates or hits on the plaintiffs product Dettol.
b) Plaintiff has not even been able to demonstrate that any statement in their advertisement is false, as in the advertisement it has merely portrayed that our soap is better for hygienic bath. The plaintiff has not been able to prove that any of the statement made by the Defendant in the advertisement is false; therefore it also does not serve the purpose of the second test that has to be proved in order to ascertain disparagement.
c) That apart from failure of the plaintiff to prove these statements being false, the test reports filed by the plaintiffs itself, bears out the same to be true.
20. Ld. Senior Counsel for the Defendant further submitted that in the test reports filed by the plaintiff itself, it can easily be made out that the statements made by the defendant in the advertisement are true and correct. Learned senior counsel further submitted that in the test report dated 6.6.2012, it is held that the "Dettol brown liquid diluted at 1:300 does result in some or no kill (3.3 log or below)."
21. Learned Senior Advocate further depicting the label on Dettol''s bottle, submitted that it clearly describes in what ratio the antiseptic liquid has to be used in various circumstances and it clearly illustrates the contradicting stand of the plaintiffs, as under the recommendation dilution level, it is given that only one teaspoon should be added to the bucket full of bathing water, instead of having 2 spoons in a mug of water. For ready reference, The dilution table is given below:
22. Learned Senior advocate further submitted that therefore, it is quite clear that for bathing purpose, no dilution level or ratio is prescribed, but it is simply written, bucket full of water, and as per their own criteria a bucket full of water would mean 3000 ml of water, edging the ratio to be 1:3000. This being their own recommendation, the test report of the plaintiffs at page 115 is contradictory to this effect. The Ld. Senior Counsel further submitted that it is clearly shown that Dettol''s advice to the consumers at the back of the bottle of dettol, is 1 tablespoon in 200 ml of water (assuming the same to be a litre), it is quite manifest that a person if takes bath requires at least 15 litres of water, a minimum quantity a bucket can store, therefore even for bathing purposes the same ratio is given as what is prescribed for a mug of water for the purpose of shaving, i.e. 1 table spoon of Dettol in a bucket full of water. Counsel further submitted that if we even assume that in 1:200, one table spoon is diluted in 1 litre of water, that is almost a bottle of drinking water, one cannot take a bath with such small quantity of water. Therefore, the plaintiffs very mischievously do not mention the dilution level in terms of taking a bath.
23. Learned Senior counsel after placing reliance on various tests reports submitted that usual standard of germ kill with an effective antiseptic as per the European standards is 5 log reduction in 5 minutes. Learned Counsel further submitted that 1 litre of water, when diluted with 1 tea spoon of Dettol, it achieves a 5 log reduction, therefore by this report it does not meet the criteria of killing 99.9% germs in 10 minutes. Whereas lifebuoy, the soap, when diluted in the same proportion, it shows 1.1 log reduction as per the European Standards.
24. It was also submitted by the Ld. Senior Counsel that this standard for a soap is inappropriate as dilution for a soap is established at 8%, and when the same is applied on the body, lather is formed, it is at friction with body that kills germs and that is how it has to be tested for determining its efficacy in terms of a soap. The prescribed dilution level as per the independent agencies referred to by the defendant, for soap is 8% (being a solid substance). ANTI MICRO ACCURACY test shows that 8% solution in hard water is the accepted standard of dilution of a soap for comparison of soaps.
25. Ld. Senior Counsel also brought the attention of this court on the technical note-related to a literature, wherein it has been mentioned that what quantity of commercial soaps are required to be tested in aqua solutions i.e. 8%.
26. Learned Counsel further submitted that the plaintiff inexplicably adopts a standard if 1:200 while conducting a test for Dettol and Lifebuoy. The said report is certainly in favour of the defendant because dilution of 1 ltr of Dettol soap results in some or no kill, and bucket of water is approximately 15 litres, therefore, it is quite evident that there wouldn''t be any killing of germs, hence standard adopted by them is in the favour of the defendants.
27. Ld. Senior Counsel further submitted that as per the advertisement, the defendant has to show that it is a better product and its efficacy to kill germs is better. The plaintiff however do not indicate any procedure, simply stating the dilution levels as 1:200, which is an incorrect solution in reference to a person taking bath with that water, the appropriate ratio would be 1:3000. And when the plaintiffs have compared the two, no dilution level or procedure has been prescribed for lifebuoy.
28. Ld. Senior counsel also submitted that not going into the nitty-gritty''s of the reports, but assuming how the test is supposed to be conducted as a prudent person, by applying the soap on to the body, creating lather for at least 30 seconds, and then wash away the soap and examine the log reduction is an emphatic way.
29. Ld. Senior placed reliance on the report given by Microchem Silikker wherein the test sample concentration as taken by them is 1:1500 and 8% of the lifebuoy solution was taken for conducting the tests. 3.58 is the log reduction that was obtained by the defendant''s product, lifebuoy when brought in contact with water and was applied on the body with lather formation. Learned counsel further submitted that it clearly signifies the defendant''s product being better to that of the plaintiff''s.
30. Mr. Sethi, learned senior advocate further invited the attention of this court to the reports submitted by the defendant, which ascertain that Dettol antiseptic liquid when brought in contact for 1 minute with water results in between 1.3 to 1.99 log reduction and whereas lifebuoy results in between 3.58 to 4.74 log reduction (being 4 times more effective). It was further submitted that only fact that has to be established is "We are a better product". Learned Counsel further submitted that an independent organisation--Citel Services "to compare anti bacterial efficacy", Dr. Paranjape conducted the "test" and it was opined that lifebuoy is a better germ protector. Learned counsel for the defendant also relied on another report by Hansa Research group which clarifies that 53% of the households in India use only antiseptic liquid in diluted water for bathing.
31. Relying on a letter sent by Professor K.J. Nath, President, Institute of public Health Engineers, India, learned senior advocate further submitted that even in the letter by an expert on this subject says that lifebuoy soap is the most effective option in a bathing application to gain protection from germs. Learned senior advocate further submitted that Centre for Disease Control and Prevention, in its research has clarified that wash hand reduces catching of such harmful diseases. Primary recommendation for reducing germs is by using soap and water. Therefore, for complete protection, merely an antiseptic liquid in water does not give you a clean bath, " An acknowledgment that merely a spoon of antiseptic liquid does not give a complete protection against germs."
32. In support of his arguments, the learned Senior Counsel for the Defendant placed reliance on the following judgments:
a)
b)
c)
33. Counsel for the plaintiff in rejoinder argued that the plaintiff is not complaining about the quality of the defendant''s product rather the only issue for consideration is whether an antiseptic liquid can be compared to a cosmetic soap. Learned counsel submitted that an antiseptic-according to the drug act has a germ killing capability. Lifebuoy is a cosmetic soap, which definitely washes away the germs but does not kill the same like dettol, which is an antiseptic liquid. That an antiseptic liquid, according to the reports kills 99.9 % germs. This product is actually used on infections and wounds. The advertisement suggest "antiseptic liquid se zyaada kitanu nikalte hain", does lifebuoy kills more germs than an antiseptic liquid? "isse paani ke kitanu nikal jaye". Therefore, there is no denial of the fact, when antiseptic liquid is poured into water, it does make the water clean and rid of germs but the impression on the consumer of word ''NIKAL'' is critical, in the defendant''s advertisement it is purporting to show that what happens to the bucket of water with DETTOL antiseptic liquid, the same would happen with the bar of lifebuoy soap on the consumer''s body, so it is better to use lifebuoy soap. Lifebuoy is so much superior, even better than medicines is what they are showing, which can be clearly adjudged from the impugned advertisement. Even the depiction of the advertisement where it starts with a snapshot of toys and the child is shown in twenty prints clearly tries to imitate the Plaintiffs Advertisement.
34. Learned counsel for the Plaintiff further submitted that the counsel for the defendant is completely digressing from the advertisement, the defendant in their advertisement are trying to manipulate the public by portraying the antiseptic liquid (dettol) bathing with the same causes cholera, typhoid. Counsel for the plaintiff stoutly raised a plea that the issue involved today is not the reports but the truthfulness of the advertisement as they are disparaging the reputation of the plaintiff, and the documents are to be examined at the time of trial, not at this interim stage.
35. I have on the anvil of settled principles, after carefully viewing the television commercial on the DVD placed on record, have gauged whether any prima facie case of disparagement of the product of the plaintiff is made out.
36. Before I proceed to decide the application, it would be appropriate to give a brief display of the advertisement in question, as indicated in the form of a story board, which is shown as under.
37. Having analysed the Television Commercial (TVC), the moot question before this court is: Does the commercial telecast by the respondent disparage the product of the plaintiff and if so, whether the plaintiff is entitled to an injunction against the telecast.
38. There is no iota of doubt that the plaintiff and the defendant''s company are individually well renowned in the Indian market. In the league of antiseptic liquid, as per the plaintiff it captures 85% of the market; it is widely used in hospitals, homes, clinics etc. In the present petition, the plaintiff is aggrieved by the television commercial telecasted by the defendant, wherein it shows a child frequently falling sick and a few toys displayed in the background, followed by a doctor inquiring about his hygiene habits and the parents proudly telling the doctor that they use antiseptic liquid in the bathing water. The diagnosis by the doctor appears to be that the child is frequently falling sick owing to the use of antiseptic liquid in bathing water. Further the apprehension raised by the plaintiff is that the commercial proceeds with the lady pouring the antiseptic liquid in the bucket in the same manner as that has been shown in the plaintiffs ''Dettol'' advertisement, which would raise doubts in the mind of prudent users about the efficacy of ''Dettol'', portraying the very antiseptic to be less effective, thereby ridiculing and disparaging its reputation in the market. It is the case of the plaintiff that in the impugned advertisement, the defendant reproduced a clouding effect which is only visible when pouring ''Dettol'' as it is the exclusive feature borne by ''Dettol''. It is also the case of the plaintiff that the colour of the liquid used in the impugned advertisement is also similar to that of Dettol and even the shape of the bottle clearly resembles the plaintiffs bottle of Dettol antiseptic liquid. Thus the reputation and goodwill of the plaintiffs product is suffering at the cost of the impugned advertisement wherein very mischievously, the defendant portrays that Lifebuoy is better than an antiseptic liquid having 100% germ protection quality.
39. There are various test reports that have been relied upon by the defendant as well as the petitioner, which appear to be relevant in supporting the comparative study to determine which is a better germ protector but the authenticity of the same cannot be tested at this stage. One cannot even do a deep study of these reports or depend upon the same as they are the reports given by the agencies engaged by both the parties individually, who have conducted these tests and research. However, for convenience, the summary of the details of the relevant reports and results are given as under:
40. As per the report given by Michrochem Silliker, the Dettol product (the antiseptic liquid) was tested at two concentration levels--1:1500 and 1:3000. The Lifebuoy soap was tested at a test sample concentration of 8%. If one converts the concentration levels of the Dettol product in the tests into percentages, they come to about 0.067% (1:1500) and 0.033% (1:3000). This is significantly less than the concentration level (8%) at which Lifebuoy was tested. To put it differently, the concentration level at which Lifebuoy soap was tested was approximately 120 and 240 times as strong as the concentration levels of the Dettol product.
41. This appears at a first glance to be a grossly unfair basis for comparison. Although there does not seem to be any suggested pack dilutions for testing or comparing the two products or explaining as to why the 8% concentration level is an appropriate use concentration for Lifebuoy or 33 % for Dettol, nor does it say why it would be appropriate to compare with these dilution levels, as for Dettol its significantly lower. However, I do not find the arguments of the counsel for the defendant convincing in the said regard. Nevertheless, the efficacy of these tests reports submitted by both the parties would be well decided by this Court after the trial.
42. Be that as it may, the television commercial should be construed and tested from the perspective of a common man and user of the product which would be the ultimate analysis as on viewing the said television commercial, whether a common man of ordinary prudence would understand or analyse the same on the same notions as that of the plaintiffs. Therefore, the technicalities in the reports establishing the efficiency of the two products would not suffice the purpose of deciding the present application, as the validity of the same can only be established at the stage of trial. The reason for this is the fact that television advertisements unlike print advertisements make an instant bearing across consumer classes and the level of impact of such advertisements on the consumer is much greater than a print advertisement where each word has to be read, analysed and understood. Advertisers therefore will have to tread much more carefully when creating comparative advertisements for television.
43. The law in regard to commercial disparagement is crystal clear i.e. a trader can puff up his goods in comparison to his competitors goods but he cannot denigrate or disparage his competitors while doing so. Meaning thereby that comparative advertising is allowed to the extent of a trader comparing his goods with the goods of another trader and establishing superiority of his goods over that of others, but while doing so he cannot say that the goods of his competitor are bad, inferior, or undesirable. In case he makes any such nuances, it would be an act of constituting ''product disparagement''. Such comparison leading to disparagement of rival''s product is not allowed.
44. According to Garner Bryan, A Black''s Law Dictionary, seventh edition (West Group Minnesota) 1999, the word ''disparage'' means to connect unequally, or to dishonour (something or someone) by comparison or to discredit unjustly or detract from the reputation of (another''s property, product or business); or false and injurious statement that discredits or detracts from the reputation of another''s property, product or business. That implies that, ''disparagement'' being a false and injurious statement that discredits or detracts from the reputation of another''s property, product or business.
45. The New International Websters'' Comprehensive Dictionary defines disparagement to mean, "to speak of slightingly, undervalue, to bring discredit or dishonor upon, the act of deprecating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth".
46. As stated in Business torts in Massachusetts, 1st Edition, 2002, Chapter 9 DEFAMATION, COMMERCIAL DISPARAGEMENT, AND FALSE ADVERTISING JULIA HUSTON, ESQ. SARAH C PECK, ESQ. Bromberg & Sunstein LLP, Boston, which defines ''commercial disparagement'' as under:
Commercial disparagement is a common law tort closely related to defamation. It has been defined as a false statement intended to call into question the quality of a competitor''s goods or services in order to inflict pecuniary harm. Picker Int''l, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D. Mass. 1994).
47. Comparative advertising is often supported on the basis of the argument that advertising is commercial speech and is therefore protected by Article 19(1)(a) of the constitution Refer
48. The law relating to fictitious advertisements, causing injury to a rival trader''s goods, was expounded in several decisions in the past. The initial common law position on the point was determined by a decision of the Chancery Division in De Beers Abrasive v. International General Electric Co. 1975 (2) All ER 599 where the Court summarized the correct legal position as follows:
What precisely is the law on this point'' It is a blinding glimpse of the obvious to say that there must be a dividing line between statements that are actionable and those which are not; and the sole question of a dry point of law such as we are discussing here is; where does the line lie'' On the one hand, it appears to me that the law is that any trader is entitled to puff his own goods, even though such puff must, as a matter of pure logic, involve the denigration of his rival''s goods. Thus in the well known case of the three adjoining tailors who put notices in their respective windows reading: ''The best tailor in the world'', ''The best tailor in this town'', and ''The best tailor in this street'', none of the three committed an actionable offence.
Where, however, the situation is not that the trader is puffing his own goods, but turns to denigrate those of his rival, then, in my opinion, the situation is not so clear cut. Obviously the statement: ''My goods are better than X''s'' is only a more dramatic presentation of what is implicit in the statement: ''My goods are the best in the world''. Accordingly, I do not think such a statement would be actionable. At the other end of the scale, if what is said is: ''My goods are better than X''s, because X''s are absolute rubbish'', then it is established by dicta of Lord Shand in the House of Lords in White v. Mellin (1895) AC 154, which were accepted by counsel for the Defendants as stating the law, the statement would be actionable.
Between these two kinds of statements there is obviously still an extremely wide field; and it appears to me that, in order to draw the line, one must apply this test, namely, whether a reasonable man would take the claim being made as being a serious claim or not. A possible alternative test is to ask whether the Defendant has pointed to a specific allegation of some defect or demerit in the plaintiff''s goods. This is, I think, the test favoured by the learned editors of the last few editions of Salmond on Torts.
49. The three English cases; White vs. Mellin (1895) AC 154 HL, The Royal Baking Powder Company vs. Wright Crosssley & Co. (1901) 18 R.P.C. 95 and De Beers Abrasive Products Ltd. & Ors. Vs International General Electric Co. of New York Ltd. (supra), summed up the law relating to false advertising causing injury to a rival traders group pithily and in a nutshell lay down the following principles:
I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.
II) He can also say that his goods are better than his competitors'', even though such statement is untrue.
III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors'' he can even compare the advantages of his goods over the goods of others.
IV) He however, cannot, while saying that his goods are better than his competitors'', say that his competitors'' goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible.
V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.
50. The aforesaid law found resonance in Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. 1999 (19) PTC 741 (Cal), wherein the Calcutta High Court considered the concept of negative advertisement. In the said case, the plaintiff was a manufacturer of whitener sold under the brand name ''Robin Blue''. The defendants were also manufacturing a whitener and selling their product under the brand name ''Ujala''. The advertisement of the defendants depicted that the colour blue (which was of plaintiff''s product) was uneconomical and the average blue was the most expensive to whiten the clothes. It had further been added what is more, you have to use lots of blue per wash''. While making the said comment the container of the plaintiff had been shown upside down and it had further been shown that the liquid was gushing out. The court observed as under:
The object is obviously to show that the product of the petitioner priced at Rs. 10/- gushes out as a quirt and not in drops while using and Therefore, it is an expensive way to whiten clothes. The container of the petitioner as produced by Mr. Chakraborty was put by me up-side-down and I found that the liquid packed in the container comes out drop unless one squeezes the container, which is made of plastic. It has then been shown in the advertisement that blue is a product of obsolete technology and Therefore, it cannot dissolve completely in water and as such forms sediments at the bottom of the wash bucket. The said assertion it appears to me is not a presentation of a technological disadvantage of the product of the petitioner as was asserted by Mr. Chakraborty but an insinuation to the product itself. The same is clarified by the last assertion contained in advertisements to the effect that blue leaves dirty blue patches on clothes because it forms sediments. The insinuation, Therefore, is sediment of blue leaves blue patches on freshly washed clothes since blue cannot dissolve in water.
Thus it was the poor depiction of the plaintiff''s product which was aimed at in the impugned advertisement and was found to be disparaging.
51. The above principles have been reiterated in the case of
12. The settled law on the subject appears to be that a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods and the same will not give a cause of action to other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation to the goods of the manufacturer so doing. However, a manufacturer is not entitled to say that his competitors goods are bad so as to puff and promote his goods. It, Therefore, appears that if an action lies for defamation an injunction may be granted...
52. In
What is disparagement. The New International Websters'' Comprehensive Dictionary defines disparage/disparagement to mean, "to speak of slightingly, undervalue, to bring discredit or dishonor upon, the act of deprecating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth, and degradation. The Concise Oxford Dictionary defines disparage as under, to bring discredit on, slightingly of and depreciate..... To decide the question of disparagement we have to keep the following factors in mind namely; (i) Intent of commercial (ii) Manner of the commercial (iii) Storyline of the commercial and the message sought to be conveyed by the commercial. Out of the above, "manner of the commercial", is very important. If the manner is ridiculing or the condemning product of the competitor then it amounts to disparaging but if the manner is only to show one''s product better or best without derogating other''s product then that is not actionable."
53. Reiterating the same principle, in the recent decision of this Hon''ble court, in the case of Reckitt Benckiser (India) Ltd. Vs. Hindustan Lever Limited (supra), position of law was carved out as, for a claim of commercial disparagement to succeed in cases of comparative disparagement, the court is to approach the issue from the perspective of the hypothetical "average person of imperfect recollection" picked from the target group of consumers. A tradesman is entitled to declare that his goods are the best in the world-even if such a declaration is untrue. Mere puffing is permissible, but slighting or rubbishing or otherwise denigrating or disparaging another''s product is not. The germane portion of the judgment is given below:
33. Two recent English decisions; one of 2000 and another of 2002 need to be noticed. In Jupiter Unit Trust Managers Trust Ltd. v. Johnson Fry Asset Managers plc (2000) Unreported 19 April, QBD Morland J. observed as under:
22. In my judgment when considering comparative advertising in relation to a claim for malicious falsehood the test that the Court should apply whether in relation to slander of goods or slander of a financial product is whether the financial service provider in puffing his own product has overstepped the permissible limit of denigration or disparagement of his rival''s product so that a reasonable man would take the claim seriously. In DSG Retail Ltd. v. Comet Group PLC (2002) EWHC 116, while considering the question as to where the line is to be drawn between mere puffery and actionable statements, it was noticed that this question had been addressed by Walton J in De Beers Abrasive Products Ltd. and Ors. v. International General Electric Co. Ltd. (1975) 1 WLR 972, as under:
What precisely is the law on this point? It is a blinding glimpse of the obvious to say that there must be a dividing line between statements that are actionable and those which are not; and the sole question upon a dry point of law such as we are discussing here is: where does that line lie? On the one hand, it appears to me that the law is that any trader is entitled to puff his own goods, even though such puff must, as a matter of pure logic, involve the denigration of his rival''s goods. Thus in the well-known case of the three adjoining tailors who put notices in their respective windows reading: "The best tailor in the world", "The best tailor in this town", and "The best tailor in this street", none of the three committed an actionable wrong.
This is, I think, a proposition which extends to a much wider field than the slander of goods; for example I think it extends to other vague commendatory statements about goods or services on offer. Principal among its applications has been the case of auctioneers, who, within limits, have always been allowed to use language which has been strictly perhaps not literally true; thus for example to take note of one instance, in Hope v. Walter (1900) 1 Ch 257: "I do not attach any importance to the word eligible'': it is the ordinary auctioneer''s language". In other words, in the kind of situation where one expects, as a matter of ordinary common experience, a person to use a certain amount of hyperbole in the description of goods, property or services, the courts will do what any ordinary reasonable man would do, namely, take it with a large pinch of salt.
Where, however, the situation is not that the trader is puffing his own goods, but turns to denigrate those of his rival, then, in my opinion, the situation is not so clear cut. Obviously the statement: "My goods are better than X''s" is only a more dramatic presentation of what is implicit in the statement: "My goods are the best in the world". Accordingly, I do not think such a statement would be actionable. At the other end of the scale, if what is said is: "My goods are better than X''s", because X''s are absolute rubbish", then it is established by dicta of Lord Shand in the House of Lords in White v. Mellin (1895) AC 154, which were accepted by Mr. Walton as stating the law, this statement would be actionable.
Between these two kinds of statements there is obviously still an extremely wide field; and it appears to me that, in order to draw the line, one must apply this test, namely, whether a reasonable man would take the claim being made as being a serious claim or not.
34. Finally, McCarthy on Trademarks and Unfair Competition: Fourth Edition, Volume 4 at 27:38 explains "Puffing" to be exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable. It was also observed that "Puffing" may also consist of a general claim of superiority over comparable goods that is so vague that it will be understood as merely the seller''s expression of opinion. It was further noted that an exaggerated advertising claim which is placed with an intent to influence the consumer''s buying decision cannot be dismissed as mere puffing.
These two decisions, and what is stated in McCarthy, stress the point that (a) between clear-cut cases of permissible comparative advertising and impermissible "rubbishing" of a rival''s product there may yet be a wide field of cases and (b) the dividing line in such cases would have to drawn based on the test whether a reasonable man would take the claim of the alleged slanderer seriously or take it with the proverbial ''large pinch of salt'' and dismiss it as mere puffery. If it is the former then, it is a case of disparagement and if it is the latter then, it is a case of mere puffery which is not actionable.
54. The judgment reported as McDonalds Hamburgers Ltd. v. Burgerking (UK) Ltd. (1987) F.S.R. 112, warned that:
Advertisements are not to be read as if they were some testamentary provision in a will or a clause in some agreement with every word being carefully considered and the words as a whole being compared.
55. Encompassing the aforesaid law, the Bombay High Court in the case of
16. It can, thus, clearly be seen that it is a settled position of law that a tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. He can also say that his goods are better than his competitors, even though such statement is untrue. He can also say that his product is best in the world or better than his competitors'' and also can compare the advantages of his product over the products of the others. However, while doing so, he cannot say his competitors are bad and, if he does so, he really slanders the goods of his competitors and defames his competitors and their goods which is not permissible and only in such a case the Court would be competent to grant order of injunction restraining repetition of such defamation.
17. It is equally settled that to decide the question of disparagement, the following factors are to be kept in mind:
(i) Intent of commercial
(ii) Manner of the commercial
(iii) Storyline of the commercial and the message sought to be conveyed by the commercial.
Out of the above, "manner of the commercial", is very important. If the manner is ridiculing or condemning product of the competitor then it amounts to disparaging but if the manner is only to show one''s product better or best without derogating other''s product then that is not actionable.
...19. As already discussed hereinabove, an intent of commercial; the manner of commercial; storyline of commercial; and the message sought to be conveyed would be material. If the intent of the commercial is only for the purpose of promotion of the goods of the manufacturer, the same would not be actionable but if the intention of the commercial is disparaging the product of the plaintiff, then an action would lie. From the storyline and the manner of the advertisements in question, it can clearly be seen that the message that is sought to be given in the advertisements, is that even after the machine with product containing label alike plaintiff''s product is put on, it has no effect and the mosquitoes go on troubling which require the person in the room to indulge in acrobatics etc. It is to be noted that the advertisement campaign or visual media has an immediate impact on the viewers and possibly purchaser''s mind, particularly, when a well known cinestar is endorsing it. It is further to be noted that the matter has to be looked from the view point of the ordinary person of average intelligence. Though the advertisements in question may show the product having a label alike that of plaintiff''s product for a few seconds, the possibility of the same being registered in the mind of an average consumer and linking it with the ineffectiveness of the product cannot be ruled out.
56. In Dabur v. Emami (supra), in the commercial shown on TV projected Chayawanprash in a negative manner as the hero while holding bottle of Himani Sona-Chandi Chayawanprash (defendant''s product) in his hands declares that GARMION MEIN CHAYAWANPRASH BHOOL JAO, HIMANI SONA CHANDI AMRITPRASH KHAO (English translation-Forget Chayawanprash in summers, eat Amritprash instead). This was again a clear case of negative campaigning of the product of the plaintiff i.e. Chayawanprash.
57. In Frankfinn Aviation Services Pvt. vs. Akash Gupta (supra), it was held that the defendant could not wash away his hands by saying that anything disparaging was not pertaining to the plaintiff. It was held that person shall be entitled to injunction against other is the latter injures reputation of formers business. The germane portion of the judgment is as follows:
24. In view of settled law that though a manufacturer/tradesman is entitled to declare that his goods are best in the world and may also compare his goods with his competitors elaborating the advantages of his goods over the goods of others, he cannot defame or disparage the goods of another manufacturer/trader and if he does so, the aggrieved trader would be entitled to seek relief including the relief of damages for defamation and a prohibitory injunction.
58. In Colgate Palmolive (India) Limited V. Anchor Health & Beauty Care Pvt. Ltd. (supra), the Madras High Court while deciding an application under Order 39 Rule 1 & 2, held as under
52. It is the overall impression that customer gets as to the source and origin of the goods from visual impression of colour combination, shape of the container, packaging etc. If illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and getup, it amounts to passing off. In other words if the first glance of the article without going into the minute details of the colour combination, getup or lay out appearing on the container and packaging gives the impression as to deceptive or near similarities in respect of these ingredients, it is a case of confusion and amounts to passing off one''s own goods as those of the other with a view to encash upon the goodwill and reputation of the latter.
...
54. May be, no party can have monopoly over a particular colour but if there is substantial reproduction of the colour combination in the similar order either on the container or packing which over a period has been imprinted upon the minds of customers it certainly is liable to cause not only confusion but also dilution of distinctiveness of colour combination. Colour combination, get up, lay out and size of container is sort of trade dress which involves overall image of the product''s features. There is a wide protection against imitation or deceptive similarities of trade dress as trade dress is the soul for identification of the goods as to its source and origin and as such is liable to cause confusion in the minds of unwary customers particularly those who have been using the product over a long period.
55. The difference in the style of the words appearing on the container or packing identifying its manufacturers by way of style, colour combination or textures or graphics is certainly significant or relevant for determining the overall imitation of the container but if a product having distinctive colour combination, style, shape and texture has been in the market for decades as in this case it is in the market since 1951 it leads to ineluctable inference of having acquired secondary meaning on account of its reputation and goodwill earned at huge cost.
56. It is not the diligent or literate or conscious customer who always remain conscious to the quality of goods he has been purchasing which determines an offence of passing off. It is the unwary, illiterate and gullible persons who determine by arriving at a conclusion whether the infringed goods are confusingly similar in colour combination, get up, lay-out printed over the container or packing. If it is not so then the offence of passing off will cease to have its existence once the guilty party chooses a different trade name.
59. Therefore the law on comparative advertising clearly embark the following principles which could be summarized as under:
a) A tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue.
b) He can say that his goods are better than his competitors''.
c) He can even compare the advantages of the two goods.
d) He, however, cannot, while saying that his goods are better than his competitor''s, say that his competitor''s goods are bad. If he says so, he really slanders the goods of his competitors and their goods, which is not permissible in law.
e) If there is no defamation to the goods or the manufacture of such goods no action lies, but if there is such defamation, an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining them to perform such acts.
In order to satisfy the test of comparative disparagement, the plaintiff has to establish the following key elements:
a) A false or misleading statement of fact has been made about his product;
b) That the statement is deceiving or has the potential to deceive, the substantial segment of prospective consumer and;
c) The deception is likely to influence consumer''s purchasing decisions. The court has to also bear in mind while deciding whether the displayed commercial is disparaging or not, the intent of the advertisement, its manner and the effect of the telecast of such a television commercial. The manner in which the same is telecasted is of prime importance, the same should not be in the manner to ridicule or condemn the product of the competitor, resulting in disparagement or disrupting them in the market.
60. In determining the meaning in the impugned advertisement, one cannot lose sight of the fact that exaggeration in promoting one''s product is permissible only to an extent where the public at large can digest the same. The test is whether a reasonable man would take the claim being made, as one made seriously. The more precise and specific the claim, the more likely it is for the public to take it seriously.
61. The learned Counsel for the defendant had placed reliance on
Now, to succeed in an action for slander of goods, the plaintiff must allege and prove (1) that the statement complained of was made of and concerning his goods; (2) that it was false, (3) that it was published maliciously i.e. With the intention of injuring him and (4) that he has suffered special damage thereby. A trader is entitled to commend his own goods and state that they are better than the goods of another and if he does so, no action will lie against him, whatever damage may ensue from such statement. See White v. Mellin (1895) A.C. 154.
It is otherwise where a trader does not limit himself to a comparison of his goods with those manufactured by another trader and a mere statement that they are inferior in quality to his own, but goes further and makes an untrue statement of fact about his rival''s goods, for example, where he states that they are rotten or un Merchantable. In a case like this, an action on the case will lie, provided it can be proved that such statement was published maliciously and that special damage has ensued: see Lyne v. Nicholls (1906) 23 T.L.R. 86. It is not malice if the object of the trader is to push his own business. To make the act malicious it must be done with the direct object of injuring the other person''s business. Therefore, the mere fact that it would injure that other person''s business is no evidence of malice: see Dunlop Pneumatic Tyre Co. v. Maison Talbot (1904) 20 T.L.R. 579.
62. 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 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 dalte hai" 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 and the manner in which it spreads a protective red wall thereby removing and dissipating the germs.
63. The advertisement can be viewed in two parts. One part is where as the advertisement begins, its showing display of a few toys with the sick child which is a similar aspect to that of the plaintiffs advertisement. The other part is the "two dhakkans" of liquid is shown as being harmful and ineffective, which as per the visualisation of the television commercial, does lay an adverse connotation and a lady pouring a brown liquid in the bucket, in the same manner and display as that of the plaintiffs television commercial and where the defendant''s product is shown as having the qualities of providing a 100 % germ protection. There can be no grievance in respect where the qualities of the defendant''s soap are sought to be demonstrated: whether those qualities exist or not is not an issue. That part, even if untrue, would be mere puffery. However, the part of the advertisement, where the antiseptic liquid has been slighted and shown in bad light and in fact, as something which is ineffective, cannot but be construed as disparagement and denigration of the antiseptic liquid shown in the advertisement. It is one thing to say that a person''s product is the best or that his product is better than somebody else''s product, but, it is entirely a different matter to say that his product is good whereas another''s product is bad and harmful.
64. With aforesaid discussion, it is ostensibly clear that the advertisement disparages the plaintiffs 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 plaintiffs 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 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.
65. Therefore, the question determined by the Court is whether the advertisement merely puffed the product of the advertiser, or in the garb of doing so, was denigrating the product of the plaintiff. It is palpable to state as per the assertions made by the plaintiff and the aforesaid discussion, it is clear that the advertisement aims at denigrating the product of the plaintiff by indicating to existing and future customers that the product of the plaintiff is ineffective. A significant aspect of the manner in which puffery should be interpreted in this case is the broadly liberal attitude adopted towards untrue and imprecise statements. The emphasis of the Court in this regard is to prevent any loss or injury to the interests of the competing manufacturer or seller, with any active disparagement of a competing product being impermissible.
66. In the light of the above discussion and based on the triple test for the grant of ad-interim injunction viz. (1) whether the plaintiff has strong prima facie case to succeed on merits (2) whether the balance of convenience lies in favour of the plaintiff and (3) whether the plaintiff will suffer irreparable loss and injury if the injunction is not granted in its favour, this court finds that all the three principles lean in favour of the plaintiff and against the defendant. The plaintiff has been able to establish a prima-facie case in its favour. If the plaintiff is not granted interim injunction, the telecast of the television commercial by the defendant in the aforesaid manner definitely pose disparagement against the plaintiffs product, and is definitely detrimental to plaintiffs interest and would also cause an irreparable loss and injury to the plaintiff. The balance of convenience also lies in favour of the plaintiff and against the defendant.
67. 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.
68. I am, therefore, inclined to grant ad interim relief to the plaintiff and as against the defendant 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.
69. Subject to above directions, the present application filed by the plaintiff under Order 39 Rule 1 and 2 stands allowed. It is made clear that nothing expressed herein shall tantamount to have any bearing on the merits of this case.
