Delhi High Court
Reckitt Benckiser (India) Ltd. vs Hindustan Lever Limited on 7 July, 2008
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07 .07.2008
+ CS (OS) 1359/2007
RECKITT BENCKISER (INDIA) LTD. ... Plaintiff
- versus -
HINDUSTAN LEVER LIMITED ... Defendant
Advocates who appeared in this case:
For the Plaintiff : Mr Chander M. Lal with Ms Shikha Sachdev and Ms Kirpa
Pandit.
For the Defendant : Mr Gourab Banerji Sr Advocate with Mr Aditya Narain, Mr
Sameer Pareekh, Mr Sumit Lao, Mr Nitin Thukral, Mr Kush
Chaturvedi, and Mr Arun Krishnan.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
1. Whether Reporters of local papers may be allowed
to see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J
1. This is a suit for permanent injunction and damages for
disparagement and unfair trade practices. The plaintiff and the
defendant are competitors. The plaintiff is aggrieved by the defendant's
advertisement on television, which allegedly disparages the plaintiff‟s
soap sold under the trade mark "DETTOL". The defendant's
advertisement is for promotion of its soap " LIFEBUOY".
CS(OS) 1359/2007 Page No.1 of 56
Reliefs sought by the plaintiff:
2. The plaintiff has prayed that the defendant be restrained by a
permanent injunction from (i) issuing or telecasting the impugned
advertisement, or in any other manner disparaging the goodwill and
reputation of the plaintiff and its product sold under the trade mark
DETTOL, in any other advertisements and in all media whatsoever
including the electronic media; (2) using the depiction of the plaintiff's
soap or any other soap deceptively similar to that of the plaintiff's in its
advertisement or in any other manner disparaging the goodwill and
reputation of the plaintiff and its product sold under the trade mark
DETTOL; (3) using any other indicia whatsoever to associate
with/depict the plaintiff or its products in its advertisements issued in
any and all media whatsoever including the electronic media. The
plaintiff also seeks damages to the extent of Rs 20,00,050/- for
disparagement, denigration and tarnishment of its goodwill and
reputation by the defendant by its impugned advertisement.
Additionally, the plaintiff has also prayed for punitive and exemplary
damages against the defendant as well as for costs of the suit.
The Plaint:
3. It is stated in the plaint that the plaintiff has been involved in
the manufacture of the famous antiseptic disinfectant under the trade
mark DETTOL, for over 70 years and that the mark DETTOL has
become synonymous with good hygiene and, today, it is a household
CS(OS) 1359/2007 Page No.2 of 56
name and is the most widely used antiseptic disinfectant in the country.
It is stated in the plaint that the history of DETTOL dates back to the
year 1929 when the DETTOL antiseptic liquid was developed. It is
alleged, that as an antiseptic germ disinfectant, DETTOL has an
unparalleled reputation in the medical profession. It is also averred that
DETTOL has continuously evolved to meet modern day demands, and
now incorporates a range of innovative antiseptic, disinfectant and
cleaning products ranging from antiseptic liquid, hand wash and the
DETTOL toilet soap which has been manufactured and sold by the
plaintiff continuously since 1981.
4. It is further stated in the plaint that the present action concerns
the alleged intentional and deliberate disparagement by the defendant of the
plaintiff's DETTOL toilet soap which is identified by the members of the
trade and public by its colour and its new modern, distinctive and unique
shape, a representation of which is as under:-
[Front view of DETTOL Original soap]
It is stated that on the front of the soap the trade mark "DETTOL" and the
sword devise is clearly visible. The plaintiff contended that the consumers
CS(OS) 1359/2007 Page No.3 of 56
recognise the plaintiff's product by the colour and distinctive shape of the
soap.
5. It is further alleged that the DETTOL toilet soap, when packed,
is also identified by its distinctive green coloured packaging. A
representation of the plaintiff's product packaging is as below:-
[Photograph of the wrapper of Dettol Original soap]
6. It is further stated in the plaint that in 1981 the DETTOL soap
was launched as an orange coloured bar and rectangular in shape without
any curves. The present shape with the curved edges and the curvature in
the middle was adopted by the plaintiff on or about May, 2006. The new
improved DETTOL soap has an all new modern shape with curved edges
and a distinctive curvature in the middle which helps consumers easily
identify and distinguish the product from other products. It is averred that
while there are other orange coloured soaps in the market, the plaintiff's soap
is the only one with the distinctive shape, as indicated above. It is also
stated that the new improved DETTOL soap has three variants available in
CS(OS) 1359/2007 Page No.4 of 56
the market. One being the said DETTOL Original and the two others being
DETTOL Skincare, a white soap, and DETTOL Cool, a blue soap. As per
the plaint, out of the three variants, the DETTOL Original bar of soap ,which
has an orange colour, is the most popular. According to the plaint, the sale
of DETTOL Original constitues 80% of the total DETTOL soap sales.
7. The plaintiff has further stated that the packaging of the soap has
always been of the distinctive green and white colour combination and the
packaging has become synonymous with the famous DETTOL brand of the
plaintiff. It is alleged that the purchasing public perceives the orange
coloured bar with its distinctive shape and the distinctive green and white
packaging to be synonymous with the DETTOL Original soap. It is alleged
that the plaintiff has been continuously and uninterruptedly marketing its
DETTOL products with the distinctive packaging consisting of the green
and white colour combination including sword device in India since the year
1933.
8. The plaintiff has further stated in the plaint that it had recently
announced in a press release that it is contemplating to introduce new
variants of its flagship brand DETTOL and it launched a new ad campaign --
"Surakshit Parivar" -- to create awareness of the practice of hygiene at the
family level. The plaintiff has allocated a budged of about Rs 5 crores for
the aforementioned programme. It is also stated that by virtue of extensive
sales and sales promotion activities, the orange coloured DETTOL soap, its
CS(OS) 1359/2007 Page No.5 of 56
new curved shape along with the distinctive green and white packaging is
associated exclusively with the Plaintiff.
9. It is alleged that the plaintiff was shocked when it was recently
brought to its attention that the defendant has introduced an advertisement
on television, which intentionally and deliberately disparages the soap of the
plaintiff sold under the trade mark DETTOL and the unique and distinctive
packaging described above. The defendant's said advertisement is for its
LIFEBUOY soap. The plaintiff alleges that a bare viewing of the said
advertisement would be sufficient to convince this Court of the malicious
intention of the defendant to increase the market share of its LIFEBUOY
soap by tarnishing the goodwill and reputation of the plaintiff's soap i.e.
DETTOL Original Soap.
10. It is alleged that the soap which has been disparaged in the
impugned advertisement is virtually identical to the plaintiff's product. The
contours and the curvature in the middle on the toilet soap in the defendant's
advertisement is virtually identical to the contours of the plaintiff's DETTOL
Original soap. The only difference being that the name of the plaintiff's
product and the logo are not shown in the advertisement. The colour of the
soap in the defendant's advertisement is also virtually identical to that of the
DETTOL Original soap of the plaintiff. The packaging of the toilet soap
used in the defendant's advertisement is also similar to the packaging of the
plaintiff's said soap. It is alleged that from the above, it is apparent that the
CS(OS) 1359/2007 Page No.6 of 56
soap featuring in the defendant's advertisement is designed to give an
impression to the buyers that the offending soap is the plaintiff's DETTOL
Original soap. The advertisement then, allegedly, proceeds to disparage the
soap in the following manner:-
(i) The advertisement begins with a couple returning home after
getting wet in the rain. The wife then proceeds to take a new soap to go and
have a bath. The green coloured packaging, the orange coloured soap and
the distinctive DETTOL shape is clearly visible in the advertisement. The
intention of this scene is to convey to the audience that the offending soap
pertains to an established soap i.e., DETTOL Original soap presently being
used by the family.
(ii) The next frame shows the husband, a medical doctor, and the
children telling the lady of the house not to use the soap and the vocals state:
"Oh God bachaa lena naadaan ko aql dena....Hum sab ko
bachaa lena".
It is alleged that the use of a doctor protagonist is once again relevant as
DETTOL is an established brand in the medical profession.
(iii) The next frame shows the doctor husband explaining to the
wife the reason as to why she should not use the offending soap and, instead,
should use the Defendant's LIFEBUOY soap by stating that normal
antiseptic soaps make the skin dry leading to cracks in the skin thereby
permitting the germs to enter the cracks in the skin while the defendant's
soap fights germs and keeps the skin protected. According to the plaintiff
this scene is clearly intended to give out the message that the Plaintiff's soap
CS(OS) 1359/2007 Page No.7 of 56
is not effective against fighting germs whereas the Defendant's soap is
effective against fighting germs. The words used in the advertisement are:-
"Dua ki zarurat padegi is dawa ke saath. Aam antiseptic
sabun twacha ko rukha kar dete hai jis se dararon mein kitanu
ghus jaate hain...isi liye naya Lifebuoy skin guard jo kare
kitanuon per waar aur banaye suraksha ki bhi deevar."
According to the plaintiff it is relevant to mention that as DETTOL is used
in respect of an extremely well known brand of antiseptic liquid, the use of
the term "dawa" (medicine) is clearly intended to draw the attention of the
viewer to the Plaintiff's product.
(iv) In the next frame the lady is then shown to go and have a bath
with the Defendant's soap and come out very satisfied with the same.
According to the plaintiff, this falsely indicates that the defendant's soap is
effective against fighting germs while the plaintiff's DETTOL soap is not.
11. It is further alleged by the plaintiff that the defendant's said
advertisement is nothing but a slanderous attempt of the defendant to
increase the market share of its LIFEBUOY soap by defaming and
disparaging the worth and reputation of the plaintiff's product. It is also
alleged that the said advertisement outreaches the limits of allowed
competitive advertising and blatantly denigrates the reputation and goodwill
of the plaintiff's well established and leading brand. The said advertisement
not only shows that the defendant's product is good but also very clearly
depicts that the plaintiff's product is completely worthless. Consequently,
the said advertisement amounts to disparaging, denigrating and defaming the
CS(OS) 1359/2007 Page No.8 of 56
products of the plaintiff. It is also alleged that the use of the soap bar
including its unique curved shape and the distinctive packaging which is
virtually identical to that of the plaintiff's by the defendant is resulting in
dilution and debasement of the hard earned reputation and goodwill of the
plaintiff's world-known and widely used products.
12. The plaintiff has further averred that the defendant had also filed
a caveat dated 16.7.2007 which clearly indicates the defendant's mala fide
intentions as against the product of the plaintiff inasmuch the defendant was
aware that the soap depicted in its advertisement is the plaintiff's soap and
also knew that the plaintiff would initiate action against it and hence they
filed a caveat. It is alleged that the cause of action first accrued to the
plaintiff in or around July 2007, when they first came to know of the
impugned advertisement of the defendant and that the cause of action is a
continuing one. The said advertisement is being telecast on various
television channels in Delhi and is being watched by thousands of people in
Delhi. The present suit has been filed for the reliefs indicated above in these
circumstances.
The Written Statement:
13. The defendant in its written statement raised preliminary
objections. The first objection was that the jurisdiction of this Court is
specifically excluded under Section 9 of the Code of Civil Procedure, 1908
(hereinafter referred to as the 'CPC') in respect of the present suit, being a
CS(OS) 1359/2007 Page No.9 of 56
Suit for Permanent Injunction and Damages for Disparagement and Unfair
Trade Practices, which is specifically covered under the provisions of the
Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred
to as the 'MRTP Act') and the Consumer Protection Act, 1986.
14. It has also been alleged by the defendant that the plaintiff's suit is
misconceived as no cause of action against the defendant has accrued in
favour of the plaintiff and against the defendant inasmuch as the
advertisement, in question, refers to ordinary antiseptic soaps and the
plaintiff's soap is neither an antiseptic soap, nor an ordinary (unbranded)
soap. A reference was also made to a decision of this Court in the case of
Reckitt Benckiser (India) Limited v. Naga Limited & Others: 2003 (26)
PTC 535 (Del.), wherein it was allegedly held that the plaintiff's soap is not
an antiseptic soap. The defendant has also taken the objection that the
plaintiff's suit deserves to be dismissed as not maintainable as the plaintiff
does not have a monopoly over the colour or over the shape of the soap and
cannot claim exclusivity over the colour, shape or packaging of the soap. It
has also been alleged that the defendant further believes that the shape,
contours and curvatures of the plaintiff's orange coloured soap DETTOL is
not registered under the Design's Act to give the plaintiff an exclusive right
to use the same. The defendant has also alleged that the plaintiff has
approached this Court with unclean hands and is guilty of suppression of
material facts.
CS(OS) 1359/2007 Page No.10 of 56
15. Apart from the said preliminary objections, the defendant has
taken the stand that it is engaged in the marketing of several toilet soaps
including the toilet soaps being sold and marketed under the brand name
"LIFEBUOY" and that its product, LIFEBUOY soap, through an extensive
marketing network across the country and its intrinsic quality, enjoys
considerable goodwill and reputation among the Indian consumers. It is
stated that LIFEBUOY is a global brand, which was launched in the United
Kingdom in 1894 as a product for personal hygiene and that it is India's
oldest toilet soap brand and has been synonymous with health and hygiene
in India since 1895. It is alleged by the defendant that the said product sold
under the brand name LIFEBUOY for over 110 years has acquired
substantial goodwill in the market and, in fact, has become a household
name. It is alleged that the defendant's soap has been associated with
hygiene and protection against germs long before the plaintiff was
incorporated or even started manufacturing or marketing their soap.
16. With regard to the allegations of disparagement, the defendant
submitted that the intent of the defendant's advertisement is not to disparage
the product of the plaintiff but rather aims at educating the consumers and
public at large to understand the difference between toilet soaps containing
glycerine, which have a moisturizing effect on the skin and give a long term
benefit, on the one hand and ordinary antiseptic soaps in the market, on the
other, which may not contain glycerine and do not give to the consumers the
benefit of moisturizing the skin and removing the possibility of formation of
CS(OS) 1359/2007 Page No.11 of 56
cracks which is a breeding ground for germs. It is further stated that the
defendant's claims about its soap being better than any other ordinary
antiseptic soap is based on the laboratory test conducted by it.
17. The defendant submitted that the said TV advertisement has to be
seen in its totality and cannot be seen in an isolated and unnatural manner
frame by frame. It is further contended on behalf of the defendant that the
intent, manner and story line and message of the defendant's advertisement
is that its soap is better than ordinary antiseptic soaps because it is rich in
glycerine and vitamin E. It is further stated that the plaintiff's soap, being a
Rs 200 crore brand, cannot be termed as an ordinary soap and in any event,
the plaintiff's soap is not an antiseptic soap. In the entire advertisement,
there is no reference whatsoever to the trademark DETTOL or the sword
device and, therefore, there is no reference to the plaintiff's product.
18. In the written statement, the defendant has further stated that the
soap appearing in the defendant's advertisement is not the plaintiff's soap,
inter alia, for the following reasons:-
(a) The colour of the soap shown in defendant's advertisement
is yellow in comparison to the plaintiff's orange soap;
(b) The soap shown in defendant's advertisement is taken out
of a pale green single-colour packaging, whereas the plaintiff's
DETTOL TOTAL is sold in green and white and its other
variants are sold in blue and white packaging;
CS(OS) 1359/2007 Page No.12 of 56
(c) There are many other soaps in the market with curvatures
and contours similar to the plaintiff's soap.
(d) The brand name DETTOL and/or the Sword device are
embossed on all the plaintiff's products but the same are
admittedly missing from the soap shown in the defendant's
advertisement.
19. The defendant has also stated that without prejudice to the above,
even assuming, without admitting, that the soap shown in the defendant's
advertisement was that of the plaintiff, still it is settled law that a tradesman
is entitled to declare his goods to be the best in the world, even though the
declaration may be untrue. He can also say that his goods are better than his
competitors; even though such statement may be untrue. And, 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 spell out the advantages of his goods
over the goods of others. It is alleged that the plaintiff itself has been
showing its soap to be better than that of the defendant's in its various
advertisements, both in India and abroad. The written statement contains
further detailed statements countering the allegations made in the plaint.
However, the sum and substance of the defendant's case is clear from what
has been noticed above.
CS(OS) 1359/2007 Page No.13 of 56
Documents & Witnesses:
20. The plaintiff has filed several documents being Ext. PW1/1 to
PW1/19 and PW1/DX1. The defendant has filed Ext. DW1/1 to DW1/18
and DW2/1 to DW2/9. The video clip of the advertisement has been filed in
a CD and is marked as Ext. PW1/2. The plaintiff had produced one witness
- Mr Mohit Marwah, Brand Manager (Dettol) of the plaintiff company as
PW1. The defendant has produced three witnesses - (1) Mr Anuj Kumar
Rustagi, Global Marketing Manager, Lifebuoy Soaps (DW1); (2) Dr Rajan
Raghavachari, Regional Senior Product Development Manager of the
defendant (DW2) and (3) Dr Hemangi Jerajani, Dermatologist (DW3). The
evidence of these witnesses were in the form of affidavits in the first
instance and they were subjected to cross-examination by the opposing
counsel.
The Issues:
The following issues have been framed by virtue of the order dated
17.8.2007:-
"1. Whether the depiction in the advertisement of the
defendant of soap refers to the Dettol soap of the
plaintiff? (OPP)
2. Whether the advertisement of the defendant disparages or
denigrates the soap of the plaintiff? (OPP)
3. Whether the impugned advertisement seeks only to
promote the superiority of the defendant LIFEBUOY
soap over an ordinary antiseptic soap? (OPD)
4. Whether the plaintiff is guilty of suppression of material
facts? If so, its effect? (OPD)
CS(OS) 1359/2007 Page No.14 of 56
5. Whether the impugned advertisement constitutes an
attack on the goodwill and reputation of the Dettol brand
of the plaintiff? (OPP)
6. Whether the present suit is barred on account of the
provisions of the MRTP Act, 1969 and/or the Consumer
Protection Act, 1986? (OPD)
7. Whether the plaintiff is entitled to any damages for
disparagement, denigration, loss of goodwill and
reputation? If so, the extent thereof? (OPP)
8. Whether the plaintiff is entitled to punitive and
exemplary damages? If so, the extent thereof ? (OPP)
9. Relief."
Issue No.1: Whether the depiction in the advertisement of the
defendant of a soap refers to the Dettol soap of the
plaintiff? (OPP)
21. The video clip (Ext. PW1/2) of the advertisement in question, as
indicated in the form of a story board, shows:-
1. A man and his wife returning
home on a rainy day. The wife
exclaims "Kya baarish hai"
(what rain). The man places
his white coat and stethoscope
which indicates that he is a
doctor. He goes and sits with
his children (boy and girl) on
the sofa. The children are
watching a cricket match on
television.
CS(OS) 1359/2007 Page No.15 of 56
2. The next frames show that his
wife plans to take a bath
saying "chalo main naha leti
hoon" (come, let me take a
bath). She is then shown
taking out an orange bar of
soap from a green wrapper.
3. On seeing the orange soap in
his wife's hand, the husband
has a shocked look on his face
and says "Oh God, bachaa
lena" (Oh God, Save her).
4. The next frames show the
husband and children pointing
at the wife and singing a song
in chorus "Naadaan ko aql
dena, ham sab ko bachaa
lena......" ( show reason to the
naive, save us all .....).
5. The wife has a surprised look
on her face and asks "Kya kar
rahe ho" (what are you
doing?).
CS(OS) 1359/2007 Page No.16 of 56
6. The next frames show the
husband displaying the orange
soap in his raised right hand
and looking at his wife and
saying "Dua ki zarurat padegi
iss dawaa ke saath" (prayers
would be required with this
medicine).
7. This is followed by a cut to a
bathing shot where a woman
is shown using the said orange
bar of soap. In this cut, there
is a male voice-over stating:
"Aam antiseptic sabun twacha
ko rukha kar dete hain.."
(Ordinary antiseptic soaps
make the skin dry..).
8. Then there is a close-up of the
upper-arm under a magnifying
glass which reveals skin with
cracks and green germs
lodged in the cracks. At this
juncture the male voice-over
states: "..Jis se dararon me
kitanu ghus jate hain" (.. as a
result of which, germs get into
the cracks). Simultaneously,
the following words appear on
the bottom left of the screen:-
"Aam antiseptic sabun"
(ordinary antiseptic soap)
9. Then there is a cut to a water
shot, where we see a bar of
the red LIFEBUOY soap
emerging out of the water. On
the top left hand corner of the
screen, the words "Glycerine"
and "vitamin E" appear and
the male voice-over states "Isi
liye naya Lifebuoy Skin
Guard" (that is why, new
Lifebuoy Skin Guard).
CS(OS) 1359/2007 Page No.17 of 56
10. Then there is a cut again
showing a part of the arm
under a magnifying glass and
the green germs are seen
getting washed away. The
male voice-over states that :
".. jo kare kitanuon pe waar"
(.. which attacks the germs).
11. The next frames show a layer
of glycerine flowing from left
to right under the magnifying
glass and the voice-over
states: ".. aur banaye
suraksha ki bhi deevar" (..
and also builds a protective
wall).
12. The clip then proceeds to a
new cut showing the wife,
apparently after having had a
bath, coming into the living
room where the husband and
children are watching the
cricket match on television.
On seeing her they, once
again break into the same
song "Bachaa lena" (Save
us).
13. The wife stops them and,
referring to the cricket match
being shown on TV, says "Aa
hah, doctor saheb dua inke
liye bachaa lena" (Aa hah,
doctor saheb, save the prayers
for them).
CS(OS) 1359/2007 Page No.18 of 56
14. The next frames show that the
wife joins her husband and
children at the sofa and says:
"Hame koi dar nahin" (we
have no fear).
15. The next shot shows the
LIFEBUOY Skinguard bar of
soap and its package and the
LIFEBUOY logo zooms onto
the package. At this juncture
the male voice-over
announces: "Naya Lifebuoy
Skin Guard" (new Lifebuoy
Skin Guard).
16. This is followed by a cut to
the Hindustan Lever Limited
logo and the advertisement
ends there.
22. The question which needs resolution is: whether the orange soap
shown in the advertisement could be said to have a reference to the
DETTOL Original soap of the plaintiff. Ext. PW1/11 are some photographs
extracted from the video clip of the said advertisement.
CS(OS) 1359/2007 Page No.19 of 56
[photographs from Ex. PW1/11 showing the orange soap bar]
They clearly indicate the orange colour of the soap bar , the contours on the
soap, the overall shape of the soap. Ext. PW1/8 is a sample of the DETTOL
soap in the green coloured packaging. The new shape of the DETTOL
Original toilet soap with the curved edges and the curvature in the middle is
clearly displayed on the product packaging, which is further indicative of the
importance given to the shape by the plaintiff in its marketing of the product.
The packaging (Ext. PW1/8) also establishes the fact that although white is
also used, green is the pre-dominant colour. Although, the brand name, logo
or the sword device does not appear in the orange bar of soap shown in the
advertisement (Ext. PW1/2), there can be no misgiving that the bar of soap
which has been shown in the said advertisement is of a colour similar to that
of the plaintiff's DETTOL soap. The contours, curvature as well as the
overall shape of the orange bar of soap in the advertisement itself, are
virtually the same as that of the contours, curvature and overall shape of the
CS(OS) 1359/2007 Page No.20 of 56
plaintiff‟s DETTOL Original soap. Moreover, the clear impression given in
the advertisement is that the said orange bar of soap has been taken out from
a green wrapper/ packaging. It must also be noted that the design of the
plaintiff‟s soap has been registered by the plaintiff as indicated by Ext.
PW1/DX-1. While it is true that there may be other orange coloured soaps
and other soaps sold in the pre-dominantly green packaging and other soaps
which have an oval shape, it is also true that it is only the plaintiff's soap
which has a combination of all the three elements, i.e., orange colour,
curved oval shape and pre-dominantly green packaging. Apart from this, it
is only the plaintiff's soap which has contours in the manner indicated in the
bar of soap in the said advertisement. No evidence has been produced by
the defendant to show that there is any ordinary antiseptic soap with the
same combination of the aforesaid elements of colour, shape, design and
packaging. I have absolutely no doubt that the orange bar of soap shown in
the advertisement refers to the plaintiff's DETTOL Original soap.
23. It is true that the plaintiff's soap - DETTOL Original - is not an
antiseptic soap whereas the soap shown in the advertisement has been
referred to as "an ordinary antiseptic soap". An argument was advanced on
the part of the defendant that because of this, the soap shown in the
advertisement did not and could not refer to the plaintiff's soap. The learned
counsel for the plaintiff submitted that the reference to an antiseptic soap in
the said advertisement is, in fact, a further pointer to the plaintiff's product,
although, the plaintiff's soap - DETTOL Original - is not an antiseptic
CS(OS) 1359/2007 Page No.21 of 56
soap. According to him, this is so because of the well known fact that the
plaintiff's antiseptic liquid product has been utilised for years in homes as
well as in hospitals for various cuts and wounds and other antiseptic
purposes. The public at large, therefore, carry an impression, right or
wrong, in their minds that all DETTOL products are antiseptic. The
defendant, being aware of this, has specifically shown an antiseptic soap so
that the viewers of the advertisement shall immediately be directed towards
the plaintiff's DETTOL products. This, along with the other features
mentioned above, clearly establishes the link between the soap shown in the
advertisement and the plaintiff's soap. I agree with these submissions.
24. It has been contended on behalf of the defendant that the plaintiff
has not produced any evidence of consumers to indicate that the orange bar
of soap in the said advertisement appears to be the plaintiff's DETTOL
Original soap. In response the learned counsel for the plaintiff submitted
that producing such evidence would be counter-productive and is not
necessary. He submitted that the plaintiff could produce witnesses stating
that the orange bar of soap shown in the advertisement had reference to the
plaintiff's DETTOL Original soap. Similarly, the defendant could also
produce witnesses to state the contrary. Ultimately, it would be for the court
to make a judgment from the perspective of an average person with
imperfect recollection, a test which has been well established, particularly in
passing off cases. Though slander of goods and disparaging advertisements
stand on a slightly different footing to passing off cases, I find myself to be
CS(OS) 1359/2007 Page No.22 of 56
in agreement with the submissions made by the learned counsel for the
plaintiff. For, ultimately, it is a question of perception and the perception
has to be determined from the stand point of an average person man with
imperfect recollection but, with a corollary, which shall stated be shortly.
One could normally expect that there would be a difference in perception
between two distinct classes of persons -- (1) Persons who are using
DETTOL Original soap and (2) persons who do not use that soap. A person
belonging to the latter category may not be aware of the orange coloured bar
of soap of the plaintiff with its distinctive shape, curvature and contours. He
may also not be aware of the packaging employed by the plaintiff.
Therefore, such a person may not link the bar of soap shown in the
advertisement with the plaintiff's product when he sees the advertisement or
when he comes upon the plaintiff‟s product in a shop. Such a person, in all
likelihood, would perceive the orange bar of soap shown in the
advertisement as being some unbranded bar of soap. On the other hand, a
person belonging to the former category, being a user of the plaintiff's
DETTOL Original soap, would immediately recognise the bar of soap
shown in the advertisement as referring to the plaintiff's DETTOL Original
soap. This is because, such a person is familiar with the plaintiff's product.
He is "intimately" aware of the look and feel of the soap because he uses it
everyday. He knows its colour, shape, size and contours. The moment, he
sees the bar of soap in the advertisement, he would immediately correlate
the colour, shape, size and contours including the colour of the wrapper/
packaging with that of the soap that he uses everyday, that is, the plaintiff's
CS(OS) 1359/2007 Page No.23 of 56
DETTOL Original soap. Moreover, it is not as a matter of co-incidence that
all these features of colour, shape, curvature and colour of the packaging
have come together. It has been done deliberately so that it is obvious to
users of the plaintiff's DETTOL Original soap that it is the very soap that
they use everyday which is shown in the advertisement.
25. Since the advertisement avowedly seeks to attract consumers to
the LIFEBUOY Skinguard soap and away from other computing soaps, it is
obvious that the advertisement targets those persons/consumers who are
currently not using the defendant's product. It is also obvious that persons
who use the plaintiff's products fall within that target group. It is, therefore,
important that the advertisement is looked at from the perspective of
members of that target group i.e., users of the DETTOL Original soap. The
hypothetical average person (with imperfect recollection) must be picked
from this target group of users of the product sought to be slandered or
disparaged. And, this is the corollary spoken of earlier.
26. The difference in approach in a passing off action and one for
disparagement must also be highlighted. In a case of passing off, the
question invariably is whether the trade mark or trade dress employed by A
for his product is so deceptively similar to the established mark or trade
dress of B‟s product that A‟s product could be confused by or passed off to
consumers as B‟s product? Here the comparison is of rival products having a
similar trade mark, get-up or trade dress. Familiarity with the established
CS(OS) 1359/2007 Page No.24 of 56
mark, trade dress or get-up is presumed. Because, it is this familiarity that
the person intending to pass off his goods as those of the famous or more
popular, exploits. In the case of disparagement, the one who disparages
another‟s product, does not seek to make his product similar to the
disparaged product, but to distinguish it from the disparaged product. The
object of disparagement is to make the disparaged product appear to be as
near or similar to the competitor‟s product. The comparisons, therefore, in
cases of passing off and in cases of disparagement are different.
Consequently, the comparison must be from the perspective of an average
person with imperfect recollection but, that person must be picked from the
category of users of the product allegedly sought to be disparaged or
slandered.
27. Considered from the standpoint of an average man with imperfect
recollection who is also a user of the DETTOL Original soap, the
inescapable conclusion would be that the soap shown in the advertisement
refers to the plaintiff's DETTOL Original soap. Consequently Issue No 1 is
decided in favour of the plaintiff and against the defendant.
Issue No.2: Whether the advertisement of the defendant
disparages or denigrates the soap of the plaintiff?
(OPP)
Issue No.3: Whether the impugned advertisement seeks only to
promote the superiority of the defendant
LIFEBUOY soap over an ordinary antiseptic
soap? (OPD)
CS(OS) 1359/2007 Page No.25 of 56
The Law
28. Before I examine the facts, it would be instructive to notice the
law on the subject of comparative advertising. In Reckitt & Colman of
India Ltd. v. M.P. Ramchandran & Another : 1999 PTC (19) 741, a
learned single Judge of the High Court of Calcutta had considered the
concept of negative campaigning. The learned Judge after considering
several English decisions including White v. Mellin: 1895 AC 154;
Bubbuck v. Wilkinson: 1899 (1) OB 86 ; De Beers Abrasive v.
International General Electric Co.: 1975 (2) All ER 599 observed as
under:-
"From the law discussed above it appears to me that the law on
subject is as follows:
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."
CS(OS) 1359/2007 Page No.26 of 56
29. Although, the decision of a learned single Judge in the case of
Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd: 1996 PTC (16) 393
(Del.) was in an interlocutory application under Order 39 Rules 1 and 2
CPC, the aforesaid five principles laid down by the Calcutta High Court in
Reckitt & Colman of India Ltd. v. M.P. Ramachandran & Another (supra)
have been followed as the law on the subject. The learned single Judge of
this Court observed as under:-
"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 competitor`s 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..."
30. In Pepsi Co. Inc. and Others v. Hindustan Coca Cola Ltd &
Another: 2003 (27) PTC 305 (Del) (DB), a Division Bench of this Court
held that comparative advertising which discredits or denigrates the trade
mark or trade name of the competitor cannot be permitted. While
considering what is meant by disparagement, the Division Bench noted as
under:-
"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 dis-credit on, slightingly of and depreciate."
CS(OS) 1359/2007 Page No.27 of 56
The Division Bench further observed:
"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."
Summing up the law the Division Bench held:-
"It is now a settled law that mere puffing of goods is not
actionable. Tradesman can say his goods are best or better. But
by comparison the tradesman cannot slander nor defame the
goods of the competitor nor can call it bad or inferior. It has
been so held in the following cases:
(i) Hindustan Lever v. Colgate Palmolive (I) Ltd,
1998 (1) SCC 720.
(ii) Reckitt & Colman of India Ltd. v. M.P.
Ramchandran & Anr., 1999 PTC (1) 741.
(iii) Reckitt & Colman of India v. Kiwi TTK Ltd.,
1996 PTC (16) 393."
31. In Dabur India Limited v. Colgate Palmolive India Ltd: 2004
(29) PTC 401 (Del), a learned single Judge of this Court took the following
view:-
"19. I am further of the view that generic disparagement of a
rival product without specifically identifying or pin pointing the
rival product is equally objectionable. Clever advertising can
indeed hit a rival product without specifically referring to it. No
one can disparage a class or genre of a product within which a
complaining plaintiff falls and raise a defence that the plaintiff
has not been specifically identified. In this context the plaintiff
has rightly rejected the offer of the defendant to drop the
container from its advertisement so as to avoid the averred
identification of the plaintiff's product."
CS(OS) 1359/2007 Page No.28 of 56
32. The learned counsel for the defendant had placed reliance on
Imperial Tobacco Co. v. Albert Bonnan: AIR 1928 Calcutta 1 (DB),
wherein it was observed:-
"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 unmerchantable. 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] 23T.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."
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."
CS(OS) 1359/2007 Page No.29 of 56
In DSG Retail Ltd. v. Comet Group PLC (2002) EWHC 116 (QBD), 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 & Others 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 Lindley MR stated, at page
258: "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
CS(OS) 1359/2007 Page No.30 of 56
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, 171, 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.
CS(OS) 1359/2007 Page No.31 of 56
Discussion re: The Facts
of this case
35. The video clip of the TV advertisement (Ext. PW1/2) and the
story board (Ext. PW1/3) have been discussed in detail under Issue No.1.
The question here is whether the advertisement disparages or denigrates the
soap of the plaintiff and also whether it only seeks to project the superiority
of the defendant's LIFEBUOY soap over an ordinary antiseptic soap? As
discussed under Issue No. 1, the advertisement begins with the scene
showing a man and his wife returning home. It is raining heavily outside.
The man is a doctor of medicine. This is immediately indicated by the fact
that he is seen carrying his white coat and stethoscope as also the fact that
his wife, refers to him as doctor sahib later on in the advertisement.
Thereafter, when the wife proceeds to bathe with the so called "ordinary
antiseptic soap", he and his children mock and ridicule her by singing "Oh
God, save her", "Naadaan ko aql dena, ham sab ko bachaa lena......" (
show reason to the naive, save us all .....). He further rubbishes the orange
coloured bar of soap with the words -- "Dua ki zarurat padegi iss dawaa ke
saath" (prayers would be required with this medicine). The clip then
proceeds to show a person having a bath with the said "ordinary antiseptic
soap". The bare skin of the upper arm of the person is shown under a
magnifying glass as having developed cracks in which green coloured germs
are lodged. The voice-over also indicates the same. It is obvious that the
advertisement displays the said so called "ordinary antiseptic soap" in bad
light and as something harmful. A soap which only the naïve would use and
for using which prayers would be needed to save the user. Thereafter, the
advertisement proceeds with the introduction of the defendant's LIFEBUOY
soap and the manner in which it spreads a protective wall of glycerine
thereby removing the cracks in the skin and dissipating the germs.
36. The advertisement can be viewed in two parts. One part is
where the orange coloured soap is shown as being harmful and used by
people who are naïve and without any wisdom and who could be saved only
through prayers. The other part is where the defendant's product is shown as
having the qualities of providing a protective wall against dry cracked skin
and as an eliminator of germs. There can be no grievance in respect of the
second part of the advertisement, 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 first
part of the advertisement, where the orange bar of soap has been slighted
and shown in bad light and in fact, as something which is harmful, cannot
but be construed as disparagement and denigration of the orange bar of soap
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. Puffing up of one's product is permissible in
law but slighting or rubbishing or otherwise denigrating or disparaging
another's product is not. From the standpoint of a reasonable person, the
advertisement, in question, certainly disparages and denigrates the orange
bar of soap shown therein which I have held, under Issue No.1, to refer to
the plaintiff's DETTOL Original soap.
37. From this discussion, it is apparent that the advertisement
disparages the plaintiff‟s soap 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 soap. As I have already pointed out, 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
entailed a permissible "better" or "best" statement. The advertisement
comprises of two part; one which denigrates and disparages the product of
the plaintiff and the other which promotes the purported superiority of
defendant's LIFEBUOY soap. The part that disparages does so because it
indulges in the "good versus bad" comparison. The "good" being the
defendant‟s LIFEBUOY Skinguard and the "bad" being the orange coloured
bar of soap which has been identified, as discussed under Issue No.1, as the
plaintiff‟s DETTOL Original soap.
Issue Nos 2 and 3 are, therefore, also decided in favour of the
plaintiff and against the defendant.
Issue No.5: Whether the impugned advertisement constitutes an
attack on the goodwill and reputation of the Dettol brand
of the plaintiff? (OPP)
38. In view of the discussions and findings returned under Issue Nos
1, 2 and 3, this issue would also have to be decided in favour of the plaintiff.
The advertisement does constitute an attack on the goodwill and reputation
of the DETTOL brand of the plaintiff.
Issue No.4: Whether the plaintiff is guilty of suppression of material
facts? If so, its effect? (OPD)
39. It has been contended on behalf of the defendant that the upon a
reading of the plaint, it would be apparent that the object of the plaintiff is to
give an impression that the DETTOL toilet soap is an antiseptic soap, which
is false to the knowledge of the plaintiff. Apart from other paragraphs,
paragraph 7 of the para-wise reply in the written statement was referred to in
the course of arguments. In that paragraph, the defendant has submitted that
the plaintiff is misleading the court into believing that its DETTOL toilet
soap is an antiseptic soap. It was submitted that the emphasis is on the
DETTOL brand, which incorporates a range of innovative products ranging
from the antiseptic liquid to DETTOL Liquid Hand Wash and the famous
DETTOL toilet soap, thereby giving an impression that the antiseptic
properties are also present in DETTOL toilet soap. This, according to the
defendant, is totally misleading and false. In paragraph 12 of the para-wise
reply of the written statement, it is further submitted that the plaintiff is
trying to confuse the court with its DETTOL Liquid Antiseptic and is
passing off its soap as an antiseptic soap. The reference to DETTOL
Products (not Dettol Soap) is, according to the defendant, yet another
attempt on the part of the plaintiff to mislead the Court with averments made
in respect of other products which include antiseptic products and medicinal
products so as to distract and divert the attention from the true fact that
DETTOL soap is not an antiseptic soap. In paragraph 17 of the written
statement it is further stated that the plaintiff is clearly seeking to promote
the confusion in the minds of the consumers that the DETTOL soap is an
antiseptic soap and consequently, any TV advertisement directed against
ordinary antiseptic soaps is perceived on the basis of the consumers wrong
perception, to be disparaging to the plaintiff, which is totally incorrect and
denied. It is alleged that the plaintiff has in a round about manner given an
impression in the plaint that DETTOL soap is an antiseptic soap.
40. Reference was also made to a decision of this Court in the case of
Reckitt Benckiser (India) Limited v. Naga Limited & Others: 104 (2003)
DLT 490, wherein a learned Single Judge of this Court observed as under:-
"On a reading of the plaint I find the statement significant that
the "consumers perceive Dettol soap as strong and effective in
maintaining personal hygiene and regard it as an efficient
antiseptic soap that kills harmful germs and bacteria and
ensures good health and hygiene.... It is submitted that the
Dettol Soap has earned the consumers' confidence because it
has been tried and tested by the consumers inducing a belief in
them that Dettol soap has all the properties that an antiseptic
soap for personal hygiene must have.... The public perception
is that Dettol soap shares the same medicinal and curative
qualities as the dettol liquid. It matters little whether this
misunderstanding has been contrived by the manufacturer or
has developed in the consumers mind independently. However,
in the present case it is the Plaintiff's own averment that this
belief has been induced by it and nevertheless it is sanguine
enough to expect discretion to be exercised in its favour. If any
party, such as the Defendant, helps in correcting the error, it
commits no illegality. The tortious injunction, which is the
backbone of the present action, is predicated on falsehood, and
in the present circumstances, the falsehood can be laid at the
door of the Plaintiff and not of the Defendant. Once this
conclusion is arrived at, it is not possible to grant any
injunctory relief." [paragraph 7, pg 493]"
41. The defendant referred to the following documents filed on
behalf of the plaintiff namely Ext.PW1/4 (Chartered Accountant's Certificate
certifying the sales figures and the marketing expenses for the Dettol
Antiseptic Liquid from the year 2005 to 2007); Ext. PW1/5 ( the 50 ml
packaging of the DETTOL Antiseptic liquid); PW1/6 (the A.C. Nielsen
report showing the 2006 market share of DETTOL Liquid); Ext. PW1/7 (the
IMRB report dated 23.8.2007 concluding that 85% of the consumers of
DETTOL Liquid believe that the said product is recommended by Medical
Professionals). The learned counsel for the defendant contended that these
documents, which relate to the antiseptic liquid, were filed by the plaintiff
to create an impression that the DETTOL toilet soap also had antiseptic
qualities. The cross-examination of PW1 with regard to the aforesaid Ext.
PW1/4, PW1/6 and PW1/7 was also referred to. Specifically, it was pointed
out that the said witness had stated that the word "Dettol Liquid" mentioned
in paragraph 6 of his affidavit by way of evidence referred to "Dettol
Liquid" and not "Dettol Liquid Soap". It was also stated by the said witness
that Dettol Liquid and Liquid Soap are two different products and while
Dettol Liquid is antiseptic, Dettol Liquid Soap is used mainly for hand wash
and is not antiseptic. The witness also stated that the antiseptic liquid
market referred to in Ext. PW1/6 does not include the toilet soap market.
Importantly, the said witness stated that Dettol soap was not an antiseptic
soap. Similarly, Dettol Liquid soap was also not antiseptic and that the
plaintiff does not produce any antiseptic soap under the brand name
DETTOL.
42. On the basis of the aforesaid, it was contended on behalf of the
defendant that although, the plaintiff's DETTOL Toilet Soap was not an
antiseptic soap, the tenor of the plaint and the documents filed by the
plaintiff seeks to create an impression that the plaintiff's DETTOL Toilet
Soap was also an antiseptic soap and, therefore, the antiseptic soap referred
to in the advertisement had a direct connection with the plaintiff's soap
Dettol Original Soap. According to the defendant, this amounts to
suppression and, therefore, the plaintiff would not be entitled to any
equitable remedy including the remedy of injunction.
43. As against these submissions, the learned counsel for the plaintiff
submitted that the decision in the case of Reckitt Benckiser (India) Ltd
(supra) relates to an entirely different advertising campaign of the plaintiff
and that too, against a different defendant and, therefore, has been decided
on a different set of facts which has no relevance to the present proceedings.
It was also submitted that the plaintiff has been careful in ensuring that the
distinction between the Dettol Liquid and Dettol Toilet Soap is not lost sight
of. The learned counsel for the plaintiff submitted that the description of the
DETTOL Original Soap as a toilet soap can be discerned from paragraphs 7,
8, 9, 19 (i) and 19 (iii) of the plaint. It was contended that while the plaint
describes how the DETTOL brand had been extended from an antiseptic
liquid to toilet soaps, nowhere is the claim made that the Dettol toilet soap
had any antiseptic qualities.
44. I am inclined to agree with the submissions made on behalf of the
plaintiff. Nowhere in the plaint has a claim been made that the plaintiff's
Dettol Original Soap, which is the toilet soap in question, is an antiseptic
soap. As noted in Reckitt Benckiser (India) Ltd. (supra), there is a general
pubic perception that DETTOL toilet soap shares the same medicinal and
curative qualities as the DETTOL Liquid. But, for the purpose of the
present suit, what is important is: whether the plaintiff has made any
averments in the plaint indicating or suggesting that the DETTOL Original
soap is an antiseptic soap? The plaintiff has made statements explaining the
development of its brand name through time. Initially, the plaintiff‟s
product was the DETTOL Liquid which was used and is used as an
antiseptic. Under the mark/brand name DETTOL, the plaintiff diversified
its product range to include liquid hand washes and toilet soaps, which were
not antiseptic products. The plaintiff has, no doubt, highlighted the goodwill
and extensive reach of its brand DETTOL created through its primary
product Dettol Liquid. However, at the same time, the plaintiff has clearly
stated, as would be apparent from paragraph 7 of the plaint that in terms of
product development, DETTOL has continuously evolved to meet modern
day demands, and now incorporates a range of innovative antiseptic,
disinfectant and cleaning products ranging from the antiseptic Liquid
through to DETTOL Liquid Hand wash and the famous DETTOL toilet soap
which has been manufactured and sold by the plaintiff continuously since
the year 1981. In paragraph 8 of the plaint, it is stated that "the present
action concerns the intentional and deliberate disparagement by the
defendant of the plaintiff's product "DETTOL", a toilet soap which is
identified by the members of the trade and public by the colour of the soap
bar and its new modern, distinctive and unique shape.......". The plaintiff
has placed the packaging of the DETTOL toilet soap on record which also
does not indicate that the soap is an antiseptic soap.
45. Considering the averments made in the plaint in this light, I am
of the view that the plaintiff is not guilty of the alleged suppression of
material facts. While, there may be a general public perception that the
DETTOL soap shares the same qualities as the DETTOL Liquid, what is
material is that the plaintiff has not sought to give this impression through its
pleadings in the present suit. The distinction between the DETTOL
Antiseptic Liquid and its new cleaning product range of soaps and hand
wash has been made, as noted above. Nowhere has the plaintiff claimed that
its DETTOL Original Soap is an antiseptic soap. Consequently, this issue is
decided against the defendant and in favour of the plaintiff.
Issue No.6: Whether the present suit is barred on account of the
provisions of the MRTP Act, 1969 and/or the Consumer
Protection Act, 1986? (OPD)
46. At the outset, the learned counsel for the defendant submitted that
this issue has been raised more as one directed against the grant of any relief
and not as much as a jurisdictional issue. This issue is based on the plea
taken in paragraph 1 of the written statement which reads as under:-
"That the jurisdiction of this Hon'ble Court is specifically
excluded under section 9 of the Code of Civil Procedure 1908
(CPC) in respect of the present suit, being a suit for Permanent
Injunction and Damages for Disparagement and Unfair Trade
Practices, which is specifically covered by the provisions of
the Monopolies and Restrictive Trade Practices Act 1969
(hereinafter referred to as the said "MRTP Act") and the
Consumer Protection Act, 1986 (hereinafter referred to the
"Consumer Act") and consequently, their cognizance is
expressly barred. The same deserves to be returned to be
presented in the proper forum."
The learned counsel referred to the provisions of Section 36A(1)(x) of the
MRTP Act which defines Unfair Trade Practice to mean a trade practice
which, for the purpose of promoting the sale, use or supply of any good or
for the provision of any services, adopts any unfair method or unfair or
deceptive practice, inter alia, including the practice of making any
statement, whether orally or in writing or by visible representation, which
gives false or misleading facts disparaging the goods, services or trade of
another person. The learned counsel then referred to the provisions of
Section 36D of the MRTP Act, which describes the powers which may be
exercised by the Commission inquiring into an unfair trade practice. The
said Section 36D reads as under:-
"36D. Powers which may be exercised by the Commission
inquiring into an unfair trade practice. - (1) The Commission
may inquire into any unfair trade practice which may come before it
for inquiry and, if, after such inquiry, it is of opinion that the
practice is prejudicial to the public interest, or to the interest of any
consumer or consumers generally, it may, by order direct that -
(a) the practice shall be discontinued or shall not be
repeated;
(b) any agreement relating to such unfair trade practice shall
be void or shall stand modified in respect thereof in such
manner as may be specified in the order;
(c) any information, statement or advertisement relating to
such unfair trade practice shall be disclosed, issued or
published, as the case may be, in such manner as may be
specified in the order.
(2) The Commission may, instead of making any order under
this section, permit any party to carry on any trade practice, if it so
applies and takes such steps within the time specified by the
Commission as may be necessary to ensure that the trade practice
is no longer prejudicial to the public interest or to the interest of a
consumer or consumers generally, and, in any such case, if the
Commission is satisfied that necessary steps have been taken
within the time so specified, it may decide not to make any order
under this section in respect of that trade practice.
(3) No order shall be made under sub-section (1) in respect of
any trade practice which is expressly authorised by any law for the
time being in force."
47. It was further contended on behalf of the defendant that the
Consumer Protection Act, 1986 also deals with unfair trade practices.
Section 2 (c) defines "complaint" to mean any allegation in writing made by
a complainant, inter alia, that an unfair trade practice or a restrictive trade
practice has been adopted by any trader or a service provider. Section 2 (r)
of the said Act defines "unfair trade practice" to mean a trade practice
which, for the purpose of promoting the sale, use or supply of any goods or
for the provision of any service, adopts any unfair method or unfair or
deceptive practice, inter alia, including the practice of making any
statement, whether orally or in writing or by visible representation, which
gives false or misleading facts disparaging the goods, services or trade of
another person. This can be immediately seen to be virtually identical to the
definition under section 36A(1)(x) of the MRTP Act.
48. The learned counsel submitted that a distinction must be drawn
between a common law right which may be prosecuted in a civil court and a
statutory right that is to be enforced in a special forum. It was contended
that a fair reading of the plaint, appears to suggest that in fact the ingredients
of malicious falsehood/slander of goods have not been pleaded. On the
contrary, it is contended, what has been pleaded are the ingredients of
section 36A(1)(x) of the MRTP Act (and, section 2(r) of the Consumer
Protection Act) and that the plaint itself has been titled as a "suit for
permanent injunction and damages for disparagement and unfair trade
practice".
49. It was also contended on behalf of the defendant that injunction
ought to be refused where an adequate alternate remedy is available in view
of the provisions of Section 41 (h) of the Specific Relief Act, 1963. The
learned counsel also placed reliance on Reckitt Benckiser (India) Limited
(supra) and ITC v. Shri Krishna Moktan: AIR 1992 Sikkim 1 and
submitted that the present suit be dismissed granting the plaintiff liberty to
approach the appropriate forum.
50. The learned counsel for the plaintiff replied to this argument by
submitting that there is no bar to the jurisdiction of this Court for
entertaining the present suit. No such bar has been stipulated in the MRTP
Act either expressly or impliedly. He also referred to the provisions of
Section 9 CPC which stipulates that the courts have jurisdiction to try all
suits of civil nature excepting suits of which cognisance is either expressly
or impliedly barred. The learned counsel also referred to Section 4 of the
MRTP Act, which clearly states that the application of other laws are not
barred. Section 4 (1) provides that "[s]ave as otherwise provided in sub-
Section (2) or elsewhere in this Act, the provisions of this Act shall be in
addition to, and not in derogation of, any other law for the time being in
force." Sub-Section (2) of Section 4 relates to the Reserve Bank of India
Act, 1934, the Banking Regulation Act, 1949, the State Bank of India
(Subsidiary Banks) Act, 1955 and Insurance Act, 1938, none of these are in
issue in the present case. The learned counsel for the plaintiff further
pointed out to the provisions of Section 12B of the MRTP Act which
stipulates that the power of the Commission to award compensation is
without prejudice to the right of the concerned Government, trader or class
of traders or consumer to institute a suit for the recovery of any
compensation for the loss or damage caused as a result of a monopolistic or
restrictive or unfair trade practice.
51. It was further contended by the learned counsel for the plaintiff,
with reference to a decision of a learned single Judge of this Court in the
case of CITICORP & Another v. Todi Investors & Another: 2006 (33)
PTC 631 (Del), that -- (1) the established law is that under Section 9 CPC,
the jurisdiction of civil courts can only be ousted by an express or implied
bar; (2) it is well established that where a right pre-existing in common law
is recognised by the statute and a new statutory remedy for its enforcement
is provided, without expressly excluding the Civil Courts‟ jurisdiction, then
both the common law remedy and the statutory remedy might become
concurrent remedies, leaving open an element of election; and, (3) it is trite
law that an alternative statute must provide for the determination of all the
rights and liabilities of the parties for there to be an ouster of the jurisdiction
of civil courts. It was submitted that there is no express or implied bar in
the MRTP Act with regard to the institution of a suit such as the present one.
The common law remedy of false advertising was available even prior to the
enactment of the MRTP Act and the act does not take away such remedy. It
was also contended that the MRTP Act does not determine all the rights and
liabilities of the parties which are in issue in the present case. The common
law remedies that are sought in the present suit are far wider than what the
MRTP Commission can grant. It was also contended that the MRTP Act is
not a statute which seeks to protect the rights of one competitor against the
other and is designed more for redressing the grievances of consumers or
the public at large. It was contended that ITC v. Shri Krishna Moktan
(supra), a decision cited by the learned counsel for the defendant, related to
a complaint of a consumer for an unfair trade practice, and, therefore, the
said decision would not cover the situation which arises in the present case.
With regard to the decision in the case of Reckitt Benckiser (India) Ltd.
(supra), the learned counsel for the plaintiff contended that Section 41 (h) of
the Specific Relief Act, 1963 only deals with injunctions not being granted
and that too if an "equally efficacious" relief could "certainly" be obtained
by any other usual proceedings and these words, according to the learned
counsel for the plaintiff, do not deal with the availability of an alternative
forum and to that extent, it was submitted, the said decision has misread the
statute by adding the words "available in an alternative forum".
52. Considering the arguments advanced by the learned counsel for
the parties, it is apparent that the defendant has not raised any serious
contention with regard to the Consumer Protection Act, 1986. In any event,
a complaint under that Act can only be qua a "consumer dispute" and that,
too, by a consumer or a consumer association or the government. It does not
contemplate a complaint by a competitor. Furthermore, section 3 of the
Consumer Protection Act, 1986 also makes it clear that it shall not be in
derogation of but in addition to the provisions of any other law for the time
being in force. Thus, the Consumer Protection Act, 1986 does not stand in
the way of the plaintiff from seeking remedies by way of this suit.
53. As pointed out above, even the submissions made by the learned
counsel for the defendant on the basis of the provisions of the MRTP Act,
had been advanced more as an issue disentitling the plaintiff from the relief
of injunction than as a jurisdictional one. The learned counsel for the
defendant was candid in this regard, perhaps, being aware of the fact that
the MRTP Act does not set up any bar, either express or implied, to the
institution of the present suit. The provisions of Section 9 CPC are clear and
the decision of this Court in the case of Citicorp & Another (supra) is also
clear. The plaintiff's right to seek the common law remedy in the civil
courts has not been taken away by the enactment of the MRTP Act. The
provisions of Section 4 as well as Section 12B of the MRTP Act put the case
beyond any doubt that the MRTP Act does not in any way bar the institution
of a suit such as the present one.
54. As regards the arguments purportedly based on Section 41 (h) of
the Specific Relief Act, 1963, it must be noted that it only deals with
injunctions. The present suit concerns itself not only with injunction but
also damages and punitive damages. Apart from this, Section 41 (h) carries
several important expressions. They being: "equally efficacious relief";
"can certainly be obtained"; and "by any other usual mode of proceedings."
The remedies under the MRTP Act are certainly not as efficacious a relief
as an injunction granted by a court. Section 36D of the MRTP Act, as
indicated above, empowers the Commission to inquire into any unfair trade
practice which may come before it for inquiry and, if, after such inquiry, it is
of the opinion that the practice is prejudicial to the public interest, or to the
interest of any consumer or consumers generally, then the Commission may
by order direct, inter alia, that the practice shall be discontinued or shall not
be repeated. It is clear that the Commission has to examine the case of an
unfair trade practice from the stand-point of prejudice to public interest or to
the interest of any consumer or consumers generally. It does not examine or
inquire into an unfair trade practice from the stand-point of competitor
which is purely a private interest. Therefore, the scope of an inquiry into an
unfair trade practice before the MRTP Commission is entirely different from
the scope of consideration of an unfair trade practice in a civil court in a suit
instituted by a competitor against another competitor with regard to
disparaging advertisement. I do not see how the directions which may be
passed under Section 36D of the MRTP Act can be regarded as an equally
efficacious relief.
55. The second expression contained in Section 41 (h) of the Specific
Relief Act, 1963 is also of great significance. The expression is:- "certainly
be obtained". Thus, not only must the relief be equally efficacious but it
must also be "certainly " obtainable. If there is any uncertainty about the
obtaining of such relief then Section 41 (h) would not come in the way of
the injunction being granted. Lastly, the expression "by any other usual
mode of proceeding" does not, as rightly contended by the plaintiff, refer to
an alternative forum.
56. For all these reasons, it is clear that the present suit is not barred
on account of any of the provisions of the MRTP Act or the Consumer
Protection Act, 1986. The provisions of these Acts read with section 41(h)
of the Specific relief Act, 1963 also do not constitute a bar to the grant of
any of the reliefs prayed for in this suit. This issue stands decided
accordingly.
Issue No.7: Whether the plaintiff is entitled to any damages for
disparagement, denigration, loss of goodwill and
reputation? If so, the extent thereof? (OPP)
Issue No.8: Whether the plaintiff is entitled to punitive and
exemplary damages? If so, the extent thereof ?
(OPP)
Issue No.9: Relief.
57. These issues are taken up together as they all pertain to the
entitlement of the plaintiff to the reliefs prayed for in the plaint. Insofar as
the relief of injunction is concerned, it was contended on behalf of the
defendant that the nature of the orders sought by the plaintiff are overly wide
and would amount to a gagging order and ought not to be granted in the
form prayed for. It was contended that, first of all, the defendant has already
ceased to telecast the said advertisement. Secondly, the prayer seeking an
order restraining the defendant from taking out any other advertisement and
in any media whatsoever including the electronic media would amount to a
gagging order, which is not permissible. Thirdly, the prayer seeking the
restraining of the defendant from using any other indicia whatsoever to
associate with/depict the plaintiff or its products in its advertisements issued
in any media whatsoever including the electronic media would run counter
to the principles of law which permit comparative advertisements without
entailing any denigration or disparagement.
58. It was also contended that the settled legal position for grant of
an injunction, assuming a case of malicious falsehood or slander of goods
has been made out, is that the relief available to a successful claimant in
malicious falsehood is damages (or an inquiry as to damages) and an
injunction to restrain the repetition of the statement complained of or an
equivalent statement, i.e., statements which have been found to be false. It
was also contended on the strength of observations noted in Kerly's Law of
Trade Marks and Trade Names, 13th Edition, that the relief (and,
particularly costs) may be refused where one or both parties are conducting
the proceedings for the purpose of publicity rather than in pursuit of genuine
grievances. In this background, it was contended that the only injunction
order, if at all, that could be granted is, with regard to restraining the
defendant from repeating the publication of the said advertisement,
something, which the defendant has already ceased to do. It was further
contended that the present suit was only for the purposes of publicity and,
therefore, the injunction even to that extent ought to be refused.
59. As regards the compensatory relief of damages, the learned
counsel for the defendant contended that insofar as the loss of goodwill and
reputation is concerned, the tort of malicious falsehood requires proof of
special damage, i.e., the plaintiff must establish a direct casual connection
between the impugned advertisement and loss caused to him. It was
contended that the plaintiff must show that the advertisement has resulted in
damage to him, in order to satisfy the requirement of special damage. In the
present case, it was contended, the plaintiff has failed to establish any loss of
goodwill or reputation. It was for the plaintiff to prove damages suffered by
him, for which no evidence whatsoever has been led and which has
admittedly not been proved and, therefore, the plaintiff' would not be
entitled to any damages or compensation.
60. As regards the prayer for exemplary/punitive damages, it was
contended on behalf of the defendant that the law in this regard has been
summarized in Organo Chemical Industries and Another v. Union of India
& Ors: (1979) 4 SCC 573 as under:-
"For instance, `exemplary damages, are damages on an increased
scale, awarded to the plaintiff over and above what will barely
compensate him for his property loss, where the wrong done to
him was aggravated by circumstances of violence, oppression,
malice, fraud, or wanton and wicked conduct on the part of the
defendant, and are intended to solace the plaintiff for mental
anguish, laceration of his feelings, shame, degradation, or other
aggravations of the original wrong, or else to punish the defendant
for his evil behavior or to make an example of him, for which
reason they are also called "punitive" damages or "vindictive"
damages, and (vulgarly) "smart-money".
The learned counsel for the defendant submitted that the present case does
not fit within the four corners of the test necessary to qualify for the grant of
punitive damages.
61. The learned counsel for the plaintiff, on the other hand, submitted
that the plaintiff was entitled to all the reliefs claimed by it. It was
contended that the defendant in its written statement has admitted that
plaintiff's soap is a Rs 200 crore brand and, therefore, any denigration
caused will be caused to at least a Rs 200 crore brand. Ext. PW1/19, which
is a comparative chart of the channels in which advertisements of both
products appeared, in the month of July, 2007 and part of August, 2007, was
referred to by the learned counsel for the plaintiff to submit that the
defendant has targeted all channels on which the plaintiff advertises. It was
further contended that Ext. DW1/12 to DW1/14 are advertisements of the
plaintiff. In each advertisement a mother is portrayed as encouraging her
child to bathe with DETTOL soap. The defendant's advertisement has
denigrated and undermined this entire advertisement campaign which,
admittedly, was run on various TV channels and viewed by consumers and
the public at large on almost a daily basis. It was contended that the
defendant's advertisement has seriously damaged the entire campaign of the
plaintiff by showing the children now mocking and ridiculing their mother
for using DETTOL soap.
62. It was also contended that the reputation of good quality for its
toilet soap and the brand DETTOL which the plaintiff painstakingly
developed over the past many years has been destroyed by the mischievous
and malicious advertisement campaign of the defendant. With reference to
Ext. DW1/17, the learned counsel for the plaintiff submitted that the sales of
the defendant's soap shown in the advertisement have increased during that
period. According to the learned counsel for the plaintiff, a large part of this
is attributable to the advertisement in issue. A reference was also made to
the affidavit by way of evidence filed by PW1, and in particular, paragraph
26 thereof wherein it is stated that the plaintiff does not have the exact sales
figures of the defendant but has reasons to believe that the sale of the
defendant has increased substantially and the entire increase in sales of the
entire LIFEBUOY category of goods can be attributed to the negative
publicity given to the plaintiff's product. It is further stated that it is
apparent that customers have shifted their loyalty from the plaintiff's product
to the defendant's product owing to the misleading and disparaging
advertisement introduced by the defendant.
63. With regard to the punitive damages, the learned counsel for the
plaintiff placed reliance on a decision of this Court in the case of Microsoft
Corporation v. Deepak Raval, decided on 16.6.2003 in CS (OS) 529/2003
as also on the earlier decision in the case of Time Incorporated v. Lokesh
Srivastava: 2005 (30) PTC 3 (Del.). The trend for grant of punitive
damages and exemplary damages was set by the latter decision with a view
to curb the tendency to violate the law and infringe the rights of others.
Both the said decisions were in respect of infringement of copyrights. On
the basis of the aforesaid, the learned counsel for the plaintiff pressed for the
prayers as prayed for in the plaint.
64. Since issue Nos 1, 2, 3 and 5 have already been decided in favour
of the plaintiff and against the defendant, it is obvious that the plaintiff is
entitled to relief. What is the exact nature of the relief to be granted to the
plaintiff is the question at hand. I agree with the submissions made by the
learned counsel for the defendant that a blanket injunction amounting to a
virtual gagging order cannot be passed. The defendant cannot also be
restrained from bringing out comparative advertisements. The only
grievance of the plaintiff which needs to be addressed is the disparagement
and denigration of its products and goodwill. Consequently, the injunction
that the plaintiff is entitled to would be to restrain the defendant from issuing
or telecasting the impugned advertisement or in any other manner
disparaging the goodwill and reputation of the plaintiff and its product sold
under the trade mark DETTOL. It is clarified that it would be open to the
defendant to employ comparative advertising comparing its products with
those of the plaintiff without, of course, indulging in any disparagement or
denigration of the plaintiff's products.
65. As regards the question of award of damages by way of
compensatory relief, I agree with the learned counsel for the plaintiff that the
said advertisement has caused some loss/damage to the plaintiff. There is
indication that the plaintiff's consumers have shifted to the defendant's
product which has been advertised. However, no evidence of the extent of
the loss or damage that has been caused has been produced by the plaintiff.
Therefore, quantification of the extent of damage and loss has become well
nigh impossible.
66. Since the findings returned by me are that the said disparaging
advertisement was a deliberate act on the part of the defendant aimed at
reducing the sales of the plaintiff's product and thereby increasing its own
sale, through the device of slander of goods/disparaging and/or denigrating
advertising, the plaintiff would be entitled to punitive damages in the same
manner as was awarded in Time Incorporated (supra). Cases of slander of
goods, malicious falsehood and disparaging advertising have to be decided
on the crucible of fairness. There is no impediment to a trader employing
any means possible, provided such means are fair, to increase his sales, even
at the cost of its competitors. But the law does not permit any person to use
unfair means or practices to gain and profit to the detriment of his
competitors. Such unfair means or practices include disparaging
advertisements/slander of goods. In the fiercely competitive world that we
live in, businesses compete with each other on various fronts including
quality of goods. The differences in quality of the goods are sought to be
made known to the public through advertising. While providing such
information, the law permits a businessman to puff up his product and show
it in a better light than that of his competitors. However, as we have seen
above, the law does not permit a manufacturer or a trader to advertise in
such a manner that it slanders the products of its competitors, virtually
rubbishing the same, while promoting his own product. As the competition
gets fierce, price differences get reduced and businesses tend to play for a
larger market share by employing practices such as slandering of
goods/disparaging advertising which are unfair business practices and ought
to be curbed. Since the question is of fairness versus unfairness, when this
Court has found that the defendant has been deliberately unfair in its said
advertising campaign, it is reason enough for this Court to impose punitive
damages so as to discourage such a sharp practice and to put to an end to this
growing tendency. Consequently, I am of the view that the plaintiff is
entitled to punitive damages from the defendant, which I quantify as Rs
5,00,000/-.
67. In view of the forgoing discussion, there shall be a decree of
injunction in favour of the plaintiff and restraining the defendant from
issuing or telecasting the impugned advertisement or in any other manner
disparaging the goodwill and reputation of the plaintiff and its product sold
under the trade mark DETTOL. There shall also be a decree of punitive
damages of Rs 5,00,000/- in favour of the plaintiff and against the
defendant. Costs of the suit are also awarded in favour of the plaintiff and
against the defendant. The formal decree be drawn up accordingly.
BADAR DURREZ AHMED
(JUDGE)
July 7, 2008
J
