Reckitt Benckiser (India) ... vs Hindustan Unilever Limited
2008 Latest Caselaw 965 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 07.07.2008

+             IA 994/2008 in CS(OS) 136/2008 (U/O 39 R 1 & 2, CPC)


RECKITT BENCKISER (INDIA) LIMITED                           ... Plaintiff

                                   - versus -

HINDUSTAN UNILEVER LIMITED                                  ... Defendant

Advocates who appeared in this case:
For the Plaintiff     : Mr C.M. Lall with Ms Shikha Sachdev
For the Defendant     : Mr Rajiv Nayyar, Sr Advocate with Mr Aditya Narain,
                        Mr Sameer Parekh, Mr Sumeet Lall, Mr Kush Chaturvedi
                        and Mr Subranshu Padhi

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. The plaintiff seeks an injunction restraining the defendant

from telecasting an advertisement, a story board of which has been

filed at page 1 of the list of documents filed alongwith the plaint, on the

ground that it disparages the goodwill and reputation of the plaintiff

and its product sold under the trademark „HARPIC‟.

2. The impugned advertisement is in respect of the defendant‟s

toilet cleaner which is sold under the mark „DOMEX‟. According to

the plaintiff, the impugned advertisement, while promoting the

defendant‟s said product „DOMEX‟, disparages and rubbishes blue

liquid cleaners and, therefore, is also directed against the plaintiff‟s

toilet bowl cleaner which is sold under the mark "HARPIC" and is blue

in colour.

3. According to the plaintiff, its product "HARPIC POWER"

and now the newly introduced "HARPIC POWER OPTI-THICK" are

blue acid-based cleaners. On the other hand, the defendant‟s DOMEX

cleaner is a bleach-based cleaner and is translucent / white. It is

contended on behalf of the plaintiff that acid-based cleaners can have a

colour inasmuch as colour dyes are stable with acids. However,

bleach-based cleaners, not being stable with colour dyes, cannot have a

colour such as blue. It is further alleged that the plaintiff has three

other acid-based products under the HARPIC mark which have the

colours - red, yellow and green. The plaintiff also has a bleach-based

product, with which we are not concerned in the present case. The

defendant has no acid-based cleaners. Consequently, the defendant

does not have any toilet bowl cleaner in any colour other than

translucent / white. It was further contended on behalf of the plaintiff

that the HARPIC toilet bowl cleaner constitutes virtually 80% of the

market of toilet bowl cleaners and out of this, their blue toilet cleaner

has a 72% market share, while the cleaners in the other three colours -

red, yellow and green - constitute only 8%. It is submitted that

apparently consumers have a preference for the colour blue. It was also

contended that the majority of acid-based cleaners are blue in colour

and that acid-based cleaners are generally recognised as blue. It was

further contended on behalf of the plaintiff that acid-based cleaners

constitute 92% of the market and bleach-based cleaners comprise of

only 8% of the market.

4. The learned counsel for the plaintiff submitted that DOMEX

is a new product compared to the plaintiff‟s product HARPIC and the

defendant is trying to increase its market share. He submitted that the

colour blue is an identifier and it distinguishes between acid-based

cleaners and bleach-based cleaners. Since the plaintiff has the major

market share of acid-based cleaners, any attack on blue cleaners would

constitute an attack on the plaintiff. It was, therefore, submitted that

the impugned advertisement, inasmuch as it disparages and denigrates

blue liquid cleaners, as a class, denigrates the plaintiff‟s product.

5. It was also contended by the learned counsel for the plaintiff

that a toilet bowl cleaner must have two attributes - (1) germ killing;

and (2) stain removing. He submitted that in this context, viscosity of

the cleaner is an important consideration. If the cleaner has a low

viscosity and is, therefore, watery and too thin, it drains away rapidly

and does not have sustained germ killing and stain removing ability.

On the other hand, if the toilet bowl cleaner has a high viscosity and is

thick, it would have a higher germ killing and stain removing

capability. At the other end, however, if the toilet bowl cleaner is too

thick, it won‟t spread and, therefore, would not cover the entire toilet

bowl. Consequently, while thicker toilet bowl cleaners having a higher

viscosity are better and preferable to thinner and watery toilet bowl

cleaners, the viscosity is critical inasmuch as it should not be too

viscous.

6. The learned counsel for the plaintiff submitted that the

impugned advertisement is directed against thin and blue toilet bowl

cleaners which have been rubbished as having no germ killing or stain

removing ability. This disparagement, according to the learned counsel

for the plaintiff, has reference to the class of blue toilet bowl cleaners

of which the plaintiff‟s product HARPIC is a member. It was also

contended that the law on the subject is clear that while a trader may be

permitted to indulge in puffery to a certain extent insofar as his own

product is concerned and he may even claim his product to be better or

best, he cannot indulge in denigration and slander of another trader‟s

product. Thus, while a comparative advertisement would not be

actionable per se, the law prohibits the person to denigrate another‟s

products in order to attain a business advantage. Several decisions

were referred to by the learned counsel for the plaintiff which include:-

1) Reckitt & Colman of India Ltd v. M.P. Ramchandran & Another: 1999 PTC (19) 741;

2) Dabur India Limited v. Emami Limited: 2004 (29) PTC 1 (Del); and

3) Dabur India Limited v. Colgate Palmolive India Limited:

2004 (29) PTC 401 (Del).

7. On the other hand, the learned counsel appearing on behalf

of the defendant submitted that the theme of the impugned

advertisement is to show the comparative advantage of a thick toilet

bowl cleaner over thin toilet bowl cleaners and that the use of the

colour blue is only incidental. He submitted that the impugned

advertisement does not, directly or indirectly, refer to the plaintiff‟s

product. He submitted that, admittedly, the plaintiff‟s product is a thick

cleaner and, therefore, cannot be confused with the thin cleaners

referred to in the impugned advertisement. It was further contended

that the plaintiff‟s product marketed under the name of HARPIC

POWER forms the basis of the suit, but that has been discontinued by

the plaintiff itself and the current product of the plaintiff is known as

HARPIC POWER OPTI THICK. It was also contended on behalf of

the defendant that thickness / viscosity is an attribute of toilet cleaners

and if the impugned advertisement highlights this attribute and there is

nothing untrue which is being projected by the impugned

advertisement, how could the defendant be faulted. The learned

counsel for the defendant referred to Reckitt Benckiser (India) Ltd v.

Cavin Kare Pvt. Ltd: 2007 (35) PTC 317 (Del.) to submit that a

comparison of the product would not amount to disparagement.

Similarly, he also referred to Godrej Sara Lee Ltd v. Reckitt Benckiser

(I) Ltd: 2006 (32) PTC 307 (Del.) and Dabur India Ltd v. Wipro

Limited, Bangalore: 2006 (32) PTC 677 (Del.). He also referred to

Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd: 1999 (7) SCC

1 to indicate that the plaintiff has not been able to demonstrate that any

consumer was misled by the impugned advertisement into believing

that the plaintiff‟s product had been slandered. He also referred to

Jarman & Platt Ltd v. I. Barget Ltd and Others: 1977 Fleet Street

Patent Law Reports 260 to indicate that since no consumer surveys

were conducted, there is nothing to even establish a prima facie case

that there has, in fact, been a disparagement of the plaintiff‟s product.

The learned counsel for the defendant also submitted that the plaintiff is

also not entitled to injunction on the ground of delay. It was contended

that though in the plaint the grievance is made with regard to telecast of

the impugned advertisement in Hindi in January, 2008 on national TV

channels, an identical advertisement in regional languages of Southern

India had been telecast in July, 2007 and continuously since then. The

defendant had spent Rs 8 crores on this advertisement campaign since

July, 2007 and the plaintiff did not take any objection to the same for

over six months. He also submitted that it is not as if the telecast of the

advertisement in regional languages meant that it was only beamed to a

geographical region where the particular language was spoken. He

submitted that channels in regional languages are also nationally

telecast. The learned counsel appearing for the defendant referred to

various decisions on the point of delay and acquiescence including:-

1) Godrej Sara Lee Ltd v. Reckitt Benckiser (I) Ltd: 2006 (32) PTC 307 (Del.);

2) B. L. and Co. and Others v. Pfizer Products Incl.: 2001 PTC 797 (Del) (DB).

8. Lastly, the learned counsel for the defendant submitted that

injunction being an equitable remedy, it is important that the person

seeking such a remedy comes to court with clean hands and does not

suppress any material facts. He submitted that the plaintiff has

suppressed the material fact that its product HARPIC POWER was

discontinued in May, 2007. The suit is based on this product. It was

submitted that in May, 2007, the plaintiff adopted HARPIC POWER

OPTI THICK which is a thicker product, i.e., a toilet cleaner having a

higher viscosity. He submitted that all the documents filed alongwith

the plaint relate to HARPIC POWER. Even the photographs show the

product HARPIC POWER and there is no mention of the plaintiff‟s

existing product HARPIC POWER OPTI THICK. It was contended

that HARPIC POWER which was thinner than HARPIC POWER

OPTI THICK was employed by the plaintiff as the basis of the suit

because had the plaintiff mentioned its product HARPIC POWER

OPTI THICK, it would have had no case at all inasmuch as the

impugned advertisement disparages, if at all, thin toilet cleaners. It

was, therefore, submitted that for all these reasons, no injunction ought

to be granted to the plaintiff.

9. The question that requires to be examined is - whether, in

fact, there is any disparagement or slander of the plaintiff‟s product

either specifically or as a member of a class? It has been contended

that the test for such a disparagement has to be based on some

consumer survey or opinions of consumers. I do not agree with this

proposition. The reason being that it would not be difficult for both

sides to produce consumer surveys in their favour as also to produce

consumers to say what they want them to say. The result would be that

there would be surveys and opinions on both sides and it would

ultimately be left to the court to take a call on the issue. The exercise

can, therefore, be cut short and the court ought to do what, in any event,

it would eventually have to do and, that is, to employ the test of an

„average person with imperfect recollection‟ and construe the

impugned advertisement. The issue of slander of goods and

disparaging advertisement is somewhat different from the case of

infringement of trademarks and passing off where the test of an

„average person with imperfect recollection‟ is employed. In the

present case, case of disparagement, I am of the view that since the

allegation is that the advertisement is directed against or targeted upon

a particular group of customers, the advertisement must be viewed from

the standpoint of such customers. To make it clear, in the present case,

the plaintiff alleges that the impugned advertisement is directed

towards its customers - those who use HARPIC toilet cleaners.

Therefore, the „average person‟ must be one who belongs to this

category. If, the court, stepping into the shoes of such an „average

person with imperfect recollection‟ comes to the view that the

impugned advertisement disparages the product that this „average

person‟ has been hitherto using, then a case for disparagement would

have been made out.

10. The impugned advertisement needs to be examined in the

light of these observations. The story board of the impugned

advertisement is as under:-

1. Film opens on a close-up of a toilet seat and bowl with the Voice Over (VO): Yeh toilet dikhta hai saaf (This toilet looks clean);

2. Next, the same toilet is shown as being scanned in a purple hue. Germs are shown spread all over the toilet bowl and seat.

       VO: Per kise pata ki yahan
       kitanuon ki...(But, who
       knows that there is an ...)


3.     The scene cuts to a smaller
       germ      talking to   the
       Commander Germ with an
       army of germs in the
       background, apparently in
       the toilet bowl.

       VO:
       puri sena hai. To chalo
       phelayein cholera jaundice
       aur, aur..
       (... entire army of germs
       here. Come, let us spread
       cholera, jaundice and, and..)





 4.     The scene cuts to       the
       smaller germ talking.

       VO:      aur     diarrhoea,
       Jahanpanah      (...      and
       diarrhoea, Protector of the
       World)




5.     Cut back to the Commander
       Germ who is holding a
       round     laboratory flask
       containing a watery light
       blue liquid.

       VO: Aur yeh patle toilet
       cleaner toh hain itne ...
       (And these thin toilet
       cleaners are so ...)




6.     Cut back to the smaller
       germ   talking to  the
       Commander.

       VO: ..kamzor, Jahanpanah
       (..weak, Protector of the
       World).





 7.     Cut back to the Commander
       Germ who is issuing orders
       to the Army of Germs in the
       background.

       VO:      Chalo    bimaari
       phelayein (Come, let us
       spread diseases).



8.     The next scene shows the
       Domex       cleaner     being
       applied to the toilet bowl.




9.     Next, the smaller germ is
       seen trying to run away
       from the a white/semi-white
       thick fluid (the Domex
       cleaner) which is flowing
       towards him and the
       Commander germ who is in
       the foreground.

       VO: Yeh to gaadha Domex
       hai (This is thick Domex)

10. First, the smaller germ is

       annihilated..





 11. And, then the Commander.




12. Cut to the familiar purple
    scan of the toilet seat and
    bowl which shows them to
    be free from germs.

       VO: Gaadha, shaktishali
       (Thick, powerful)




13. Next, the same toilet seat
    and bowl are shown clean.

       VO: Naya Domex (New
       Domex)]




14. Cut to the image of the blue
    Domex container on the
    toilet seat cover.

       VO: Kitanuon ka khatma
       (End of germs)]





 15. The clip ends with the
    „Hindustan         Unilever
    Limited‟ logo and name.

11. The advertisement as any other TV commercial, normally,

has a video as well as an audio component. I have examined the

advertisement in three ways. By observing it: (1) visually (video

without audio); (2) audio without video; and (3) audio visually. When

one observes the advertisement only visually, then one cannot discern

whether the germs are talking about thick or thin liquid cleaners though

a watery blue liquid cleaner can be seen as being rubbished. When one

hears the audio of the impugned advertisement without the video

component, one cannot discern as to whether there is any reference to a

blue coloured toilet bowl cleaner, or for that matter, a toilet bowl

cleaner of any colour. The audio component only tells us about thin

toilet cleaners as against thick and powerful Domex. It is only when

the impugned advertisement is observed audio visually, as it should be,

that one can connect thin toilet bowl cleaners with the colour blue.

This exercise demonstrates that what is being shown in bad light is not

just blue toilet bowl cleaners or not just thin toilet cleaners, but thin and

blue toilet bowl cleaners. On behalf of the defendant it had been

contended that the colour blue was only incidental and the comparison

was essentially between thick and thin cleaners. It was also contended

that disparagement of cleaners associated with the colour blue could

not have been the intention at all. This is so, because, the water in the

clean toilet bowl is shown to be blue. Furthermore, even the

defendant‟s product DOMEX is packaged in a blue container.

Anyhow, even assuming that thin and blue toilet bowl cleaners are

disparaged, the question is whether the plaintiff‟s product falls within

this category.

12. In paragraph 15 (ii) of the plaint, the plaintiff has described

its HARPIC POWER toilet cleaner as a thick cleaning liquid. The new

variant HARPIC POWER OPTI THICK has admittedly been made a

little thicker to enhance efficiency. Thus, the plaintiff‟s HARPIC

POWER as well as HARPIC POWER OPTI THICK are both thick

toilet cleaners and cannot be placed in the category of thin cleaners. To

show that the impugned advertisement does not slander or disparage

the goods of the plaintiff, a Venn diagram can be employed to easily

and readily demonstrate that the plaintiff‟s products are not slandered

or disparaged by the impugned advertisement.

                   A               B           C



                             AB        BC

The above diagram shows the rectangular universal set of cleaners

within which are three sub-sets A, B and C represented by the circles

marked A, B and C. The circle marked „A‟ is the set of cleaners having

low viscosity - thin cleaners. The circle marked „B‟ comprises of the

set of blue cleaners and the circle marked „C‟ represents the set of high

viscosity or thick cleaners. What the impugned advertisement

disparages, if at all, are thin and blue cleaners, i.e., represented by the

area marked „AB‟ (an area which common to both circles A and B)

which, in mathematical terms, is known as „A∩B‟, but the plaintiff‟s

products - HARPIC POWER as well as HARPIC POWER OPTI

THICK -- do not fall within this area marked „AB‟. They fall within

the area marked „BC‟ which is mathematically represented as „B∩C‟.

It is obvious that even if it be assumed that the impugned advertisement

is disparaging, the disparagement is directed against thin and blue

cleaners, the plaintiff‟s products do not fall within that class.

Consequently, it cannot be said at this stage that the plaintiff‟s products

have been slandered or disparaged by the impugned advertisement.

13. In view of this conclusion, it would not be necessary for me

to examine the questions of delay, acquiescence and suppression raised

on behalf of the defendant. The plaintiff has not been able to make out

a prima facie case for the grant of an interim injunction.

This application is dismissed. No costs.

BADAR DURREZ AHMED (JUDGE) July 07, 2008 dutt