Reckitt Benkciser (India) Ltd. vs Hindustan Unilever Ltd.
2013 Latest Caselaw 2220 Del

-*      THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) No. 375/2013

                                           Date of Decision: 14.05.2013

RECKITT BENKCISER (India) LTD.                       .......Plaintiff

                             Through:   Mr.C.M.Lall, Adv. with
                                        Ms.Nancy Roy, Ms.Ekta Sarin,
                                        Mr.Jawahar Lal, Advs. for the
                                        plaintiff.

                                  Versus

HINDUSTAN UNILEVER LTD.                             ......Defendant

                             Through:   Mr.Sandeep Sethi, Sr.Adv.
                                        with Ms.Rukmani Bobde,
                                        Mr.Kumar Shashank, Advs. for
                                        the defendant.



CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

I.A. 3267/2013 (under Order XXXIX Rule 1 & 2, CPC)

1. This is a suit for commercial disparagement. The plaintiff has

sought an interim injunction restraining the defendant from

publishing advertisements or using any depiction or any other

indica which disparages the goodwill and reputation of the

plaintiff‟s product sold under the trade mark DETTOL

HEALTHY KITCHEN. A brief summary of the controversy is as

follows.

2. The plaintiff‟s case is that it has been involved with the

manufacture of the famous antiseptic liquid under the trademark

DETTOL for over 70 years and is a market leader of this segment

with approximately 85% of the market share in India. Recently, the

plaintiff has come up with a new product DETTOL HEALTHY

KITCHEN Dish and Slab Gel", which is purportedly the first

kitchen cleaner with an active ingredient (Lactic Acid) which helps

kill germs. The plaintiff claims that the product has clinically been

proven to have germ killing capabilities and is claimed to be much

more efficacious than ordinary kitchen cleaners.

3. To promote their new product, the plaintiff came out with an

advertising campaign on television comparing the germ killing

capabilities of its product and the defendant‟s VIM LIQUID. In

addition, the plaintiff also introduced a print advertising campaign.

Both these advertisements purportedly contained truthful statements

about the germ killing capabilities of the two competing products.

Admittedly, the defendant herein filed a suit against the plaintiff for

disparaging advertisement before the Calcutta High Court vide Suit

No. TN 50 of 2013. However, the Court passed a consent order in

this matter allowing the plaintiff to continue with the impugned

television advertisement subject to small variations.

4. The plaintiff contends that in retaliation, the defendant came out

with an advertisement published in the Sunday Times Edition dated

February 24, 2013, in which the defendant has purportedly

disparaged the plaintiff and its brand DETTOL. It is contended that

in the advertisement, the defendant has maliciously equated its

product to a "Harsh Antiseptic". The question asked in the initial

portion of the advertisement is:

"A Harsh Antiseptic or the power of 100 lemons - which one

would you choose to clean your child's tiffin?"

The plaintiff alleges that this reference in the advertisement was

clearly directed to the plaintiff‟s brand DETTOL being referred to

as a Harsh Antiseptic. The plaintiff contends that an attempt has

been made to misrepresent to the consumers that the plaintiff‟s

DETTOL ANTISEPTIC LIQUID and DETTOL HEALTHY

KITCHEN have the same ingredients. It also contends that the

defendant has attempted to misrepresent that the plaintiff has done

nothing but repackage its Antiseptic Liquid as DETTOL

HEALTHY KITCHEN and the reference to "harsh antiseptic" in

itself is denigrating of the plaintiff‟s brand DETTOL.

5. The plaintiff contends that to further worsen the misrepresentation,

the defendant‟s advertisement mentions:

"An Antiseptic is for cleaning wounds and floors. Would you use

to clean the utensils your family eats from?"

It contends that this statement further established the target brand to

be that of the plaintiff‟s DETTOL ANTISPETIC LIQUID which is

extensively advertised for the use in cleaning wounds and floors,

particularly in hospitals. The plaintiff has also sought to clarify that

DETTOL ANTISEPTIC LIQUID and DETTOL HEALTHY

KITCHEN have entirely different formulations. Though both the

products have efficient germ killing capabilities, DETTOL

ANTISEPTIC LIQUID contains chloroxylenol (PCMX), whereas

DETTOL HEALTHY KITCHEN is said to contain Lactic Acid.

6. The plaintiff also contends that the advertisement thereafter

mentions

"NO ONE REMOVES GREASE BETTER*

NO ONE REMOVES GERMS BETTER*"

This claim is said to contain a disclaimer in very fine print stating

"*compared to leading brands tested under lab conditions on

selective organisms and as per lab cleaning test/consumer test."

7. The plaintiff contends that this is a false statement because it is

clinically tested that its product was more efficacious at germ

killing than the defendant‟s product, as evidenced from the SGS

Report filed by the plaintiff. The plaintiff also submits that despite

being more effective in respect of germ killing, it also has a

toxicology report declaring that the plaintiff‟s DETTOL

HEALTHY KITCHEN does not result in any human health

concern.

8. The plaintiff contends that this advertisement campaign by the

defendant is outside the parameters of allowed competitive

advertising and blatantly denigrates the reputation and goodwill of

the plaintiff‟s brand. And that the defendant being in the same

sector as that of the plaintiff is well aware of the goodwill and

reputation attached to the plaintiff‟s brand DETTOL and is aiming

at illegally destroying this reputation for its own commercial

benefits thereby causing an irreparable injury to the plaintiff. It is

also contended that the defendants are attempting to increase the

market share of their product VIM LIQUID by defaming and

disparaging the worth and reputation of the plaintiff‟s product

because, the plaintiff‟s product is a new entrant into the same

market sector as the defendant‟s.

9. The plaintiff, relied on the cases of Reckitt Benckiser (India) Ltd.

v. Hindustan Unilever Ltd., 2008 (38) PTC 139 (Del); Reckitt

Benckiser South Africa (PTY) Ltd. v. Hindustan Unilever South

Africa (PTY) Ltd.; Reckitt Colman of India Ltd v. M.P.

Ramchandran & Anr, 1999 PTC (19) 741; Paras

Pharmaceuticals Ltd v. Ranbaxy Laboratories Ltd, AIR 2008

GUJ 94; Reckitt & Colman of India Ltd v. Jyothi Laboratories

Ltd., (1999) 2 CALLT 230 (HC); Dabur India Limited v. Emami

Limited, 2004 (29) PTC 1 (Del); Dabur India Limited v. Palmolive

India Ltd, 2004 (29) PTC 401 (Del); Eureka Forbes Ltd. vs.

Pentair Water India Pvt. Ltd, 2007 (35) PTC 556 (Karn); Dabur

India Ltd v. Colortek Meghalaya Pvt. Ltd and Godrej Sara-Lee,

2010 (44) PTC 254 (Del); Colgate Palmolive (India) Ltd. v.

Hindustan Lever Ltd., AIR 1999 SC 3105; Chemfab Alkhalis Ltd.

vs. S. Balasubramanian, MANU/TN/1566/2001.

10.In response to these allegations, the defendant has filed a reply

stating that the impugned advertisement made no reference to

DETTOL HEALTHY KITCHEN Dish & Slab Gel. The defendant

submits that the ad-campaign only sought to inform the consumers

that harsh antiseptics were not fit for cleaning utensils. And that the

impugned advertisement uses the term HARSH ANTISEPTIC by

which they mean those antiseptics which are particularly strong in

concentration and that the plaintiff‟s product, by their own

classification does not fall under the category of „harsh antiseptic‟

and therefore, the complaint of the plaintiff was baseless and

frivolous.

11.The defendant contends that merely because the plaintiff sold

antiseptic liquid did not rationally imply that the impugned

advertisement denigrated or disparaged the kitchen and slab gel of

the plaintiff. And that the plaintiff has not filed any conclusive

evidence to show that the overwhelming majority of consumers

associate the term „harsh antiseptic‟ in reference to the plaintiff‟s

products. Further, the defendant submits that it is entitled to puff its

products; and that the plaintiff cannot be hypersensitive to such a

puffery. And that the advertisement campaign was purely intended

to promote their product to be superior to those of other competitors

which was within their fundamental right of free speech and

expression as guaranteed under Art. 19(1) (a) of the Constitution.

The defendant submits that the advertisement was in line with the

principles as postulated by Advertising Standards Council of India

(ASCI). It is also claimed that the plaint is a retaliatory action made

out of vengeance against the suit filed by the defendant against the

plaintiff in the Calcutta High Court.

12.In furtherance of its contentions, the defendant has relied upon the

cases of Imperial Tobacco Company v. Albert Bonnan, AIR 1928

Cal 1; Reckit Benckiser (India) Ltd. v. Naga Ltd. & Ors., 2003

(26) PTC 535 (Del); Marico Ltd. v. Adani Wilmar Ltd., CS(OS)

Nos. 246 and 319 of 2013; Reckitt Benckiser South Africa (PTY)

Ltd. v. Hindustan Unilever South Africa (PTY) Ltd.; Reckitt

Colman of India Ltd v. M.P. Ramchandran & Anr, 1999 PTC

(19) 741; Paras Pharmaceuticals Ltd v. Ranbaxy Laboratories

Ltd, AIR 2008 GUJ 94; Dabur India Limited v. Emami Limited,

2004 (29) PTC 1 (Del); Dabur India Ltd v. Colortek Meghalaya

Pvt. Ltd and Godrej Sara-Lee, 2010 (44) PTC 254 (Del); and

Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., AIR 1999

SC 3105.

13.I have heard the arguments of the Ld. Counsels for both parties and

also perused through the documents placed on record including the

impugned newspaper advertisement. I am of the considered view

that prima facie the impugned advertisement subtly yet certainly

targets the plaintiff‟s brand DETTOL and its product DETTOL

HEALTHY KITCHEN. I have arrived at this conclusion for the

following reasons.

14.With regards to comparative advertising, the law is well settled.

This Court in the case of Dabur India Ltd v. Colortek Meghalaya

Pvt. Ltd and Godrej Sara-Lee, (Supra), while referring to the law

laid down by the Supreme Court, has shaped the following guiding

principles regarding puffery of a product:

(i) An advertisement is commercial speech and is protected by Article 19(1) (a) of the Constitution

(ii) An advertisement must not be false, misleading, unfair or deceptive.

(iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representation of facts but only as glorifying one‟s product.

15.This Court in Dabur-Colortek also considered the finding of the Division Bench of this Court in Pepsi Co. Inc. &Ors vs. Hindustan Coca cola Ltd. & Anr., 2003 (27) PTC 305 (Del) (DB), and added a fourth prong to this test, i.e.

(iv) While glorifying its product, an advertiser may not denigrate or disparage a rival product.

16.A Ld. Single Judge of this Court, in the Marico Case (supra), while observing the principles laid down by the Division Bench in the Dabur-Colortek Case (supra), stated that the generic disparagement of a rival product, without specifically identifying or pin-pointing the rival product is objectionable. It was held that, in view of the law laid down Tata Press Ltd. v. MTNL (1995) 5 SCC 139, false, misleading, unfair and deceptive advertising is not protected under „commercial speech‟. It was additionally observed that earlier judgments, which held that a tradesman is entitled to declare his goods to be the best in the world even though the declaration is untrue and to say that his goods are better than his competitors, even though such statement is untrue, is no longer good law. The Division Bench in the Dabur-Colortek Case (supra) also held that while hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if it does so, it must have some reasonable factual basis for the assertion made and that it is not permissible for anybody to make an off-the-cuff or

unsubstantiated claim that his goods are the best in the world or that his goods are better than that of a rival.

17.The Ld. Single Judge in the Marico Case has also placed reliance on an earlier finding of a Division bench of this Court in the Pepsi Co. Case (supra) wherein it was held that comparative advertising is permissible as long as while comparing own with rival/competitors product, the latter‟s product is not derogated, discredited, disgraced, though while comparing some amount of „showing down‟ is implicit; however the same should be within the confines of De Beers Abrasive v. International General Electric Co., 1975 (2) All ER 599, which Courts in India have frequently referred to. The case sums up the law relating to false advertising causing injury to rival traders group pithily as under:

"the law is that any trader is entitled to puff his own goods even though such puff as a matter of pure logic involves the denigration of his rival's good...Notices...reading 'the best tailor in the world', 'the best tailor in this town' and the 'best tailor in this street' do not commit an actionable offence. Where however, the situation is not that the trader is puffing his own goods but turns to denigrate the goods of his rival...then the situation is not so clear-cut. 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' and would not be actionable. However, the statement 'my goods

are better than X's because X's are absolute rubbish' would be actionable."

18.Moreover, the subsequent Division Bench in Dabur-Colortek echoed the same view as under:

"In Pepsi Co. it was held that certain factors have to be kept in mind while deciding a question of disparagement. These factors are (i) intent of the commercial; (ii) manner of the commercial; and (iii) storyline of the commercial and the message sought to be conveyed. While we agree with these factors, we would like to amplify or restate them in the following terms:-

(1) The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed.

(2) The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product? In this context it must be kept in mind that while promoting its product the advertiser may, while comparing it with a rival or a competing product, make an unfavorable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect.

(3) The manner of advertising - is the comparison by and large truthful or does it falsely denigrate or disparage a rival

product? While truthful disparagement is permissible, untruthful disparagement is not permissible."

19.At this juncture, it must be borne in mind that this Court at this stage should take only a prima facie opinion and not render any final finding on the correctness or otherwise of the claims in the advertisement of the defendant. While both the plaintiff and defendant have produced various lab reports to corroborate the „germ killing‟ and „germ removal‟ capabilities of their respective products, this is not the stage in this suit for me to determine the veracity of the claims made in the adverts. It is only for me to determine if the impugned advertisement makes a reference, either express or implied to the product of the plaintiff and denigrates it. Though the defendant has vehemently contended that its advertisement is not directed towards the plaintiff‟s product and is directed towards general awareness of the customers regarding the inappropriate usage of antiseptic in washing utensils, it is common knowledge that the plaintiff‟s brand DETTOL is synonymous with the term antiseptic in the FMCG market in India. The plaintiff has also furnished Google image results for the search term „antiseptic‟, wherein the plaintiff‟s products constitute the majority of the search results. Though I am not squarely relying on the finding of this Court in the case of Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2008 (38) PTC 139 (Del.) (DETTOL Soap Case), it is pertinent to note that the Court has observed the existence of the

notion that all DETTOL products are antiseptic. In the Dettol Case, it was observed by this Court thus -

"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 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." (emphasis supplied).

20.As observed in the DETTOL Soap Case, for reasons right or wrong,

the public at large carry an impression in their minds that all

DETTOL products are antiseptic. Therefore, the usage of the term

antiseptic in the impugned advertisement directs the viewers of the

advertisement to the plaintiff‟s brand or product. However, the

defendant has contended that it has deliberately used the term

„harsh antiseptic‟ to connote antiseptic which is concentrated.

21.I do not find any merit in the defendant‟s submissions that the term

„harsh antiseptic‟ did not refer to the plaintiff‟s brand or product,

but was used to connote an antiseptic which was concentrated. I am

of the opinion that the usage of the term „harsh antiseptic‟ in fact

refers to an antiseptic which is harsh, wherein the term „harsh‟ is

used as an adjective. If the defendant chose to convey to the

consumers a general warning regarding the harmful effects of

antiseptic products which were concentrated, the term „concentrated

antiseptic‟ would have conveyed it more aptly without any negative

connotation as attached with the word „harsh‟. By using the

adjective „harsh‟ along with the indicative word „antiseptic‟ with

respect to cleaning utensils from which food is consumed, the

defendant is trying to connote the consumers that the plaintiff‟s

product, DETTOL HEALTHY KITCHEN, has the same effect as

that of its other product DETTOL ANTISEPTIC LIQUID. Such a

linkage between the two products with completely different

formulations misleads the consumers and deters them from

purchasing the plaintiff‟s product, thereby affecting them

prejudicially.

22.With respect to the defendant‟s argument that the plaintiff has not

established conclusively that the overwhelming majority of

consumers associate the term „harsh antiseptic‟ in reference to the

plaintiff‟s products, I have seen the media reports filed by the

plaintiff. It is prima facie clear from the reports carried out in

leading press agencies such as Business Standard, as well as

internet and social media such as indiatelevision.com, firstpost.com,

twitter.com and other blogging sites, the public is aware that the

impugned advertisement is directed towards the plaintiff‟s

brand/product and perceived as the response of the defendant to a

new entrant in the kitchen cleaners market.

23.Relying upon the ratio of Dabur-Colortek, Pepsi-Co as well as Ðe

Beers, the defendant‟s claim that "NO ONE REMOVES GREASE

BETTER;NO ONE REMOVES GERMS BETTER" can be

considered to fall within the purview of permissive comparative

advertising. However, by stating that, "An Antiseptic is for cleaning

wounds and floors. Would you use to clean the utensils your family

eats from? An antiseptic is for cleaning wounds and floors. Would

you use it to clean the utensils your family eats from?", the

defendant is to that extent impliedly referring to the plaintiff‟s

product by appealing to the consumer‟s perception that the

plaintiff‟s product must be a „harsh antiseptic‟; and thereby

denigrating the plaintiff‟s product.

24.I am of the considered opinion that the plaintiff has made out a

prima facie case and demonstrated that the irreparable injury and

balance of convenience lies with it. Therefore, I hereby pass an

interim order restraining the defendant to the extent indicated above

from publishing the impugned advertisement or any other similar

advertisement or depiction aimed at disparaging the goodwill and

reputation of the plaintiff‟s brand DETTOL or its product DETTOL

HEALTHY KITCHEN in all media including print and/or

electronic media. Ordered accordingly.

M.L. MEHTA, J.

MAY 14, 2013 kk/rmm