Delhi High Court
Reckitt Benckiser (India) Pvt Ltd vs Gillete India Ltd on 6 June, 2016
.* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 6rd June, 2016
+ FAO(OS) 185/2016 & C.M. No.23298/2016
RECKITT BENCKISER (INDIA) PVT LTD ..... Appellant
Through Mr.C.M. Lall, Adv. with Ms.Kripa
Pandit, Ms.Nancy Roy and
Ms.Adya Khanna, Advs.
versus
GILLETE INDIA LTD ..... Respondent
Through Mr.A.K. Mata, Sr. Adv. with
Mr.Kapil Arora, Ms.Nattasha Garg
and Mr.Siddharth Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
MANMOHAN SINGH, J. (Oral)
1. Both the parties have made their submissions for some time.
2. The appellant has challenged the order dated 1st June, 2016
whereby the limited interim order was passed restraining the
appellant from showing in its impugned advertisement the razors in
the same blue colour of the respondent or any blue colour which is
deceptively similar to the blue colour of the plaintiff/respondent's
razors.
3. The other interim order against the appellant is that it is
restrained from claiming in its impugned advertisement that the hair
removal by using appellant/defendant's cream is twice as good as
when compared to hair removal by a razor.
4. As a matter of fact, the respondent filed the suit for mandatory
permanent injunction and damages for disparagment and unfair
trade practices. The suit and interim application first time were
listed on 20th May, 2016. The appellant/defendant also appeared
before the Court. After recording certain submissions, the time was
granted to the appellant to file the reply. No interim order was
passed.
5. The matter was adjourned to 1st June, 2016.
6. On 1st June, 2016, the impugned order was passed. The
reasons for passing the impugned limited order were given at para
7(ii) and 9(ii) of the order. The relevant extract of the said portion
is reproduced hereinbelow:
".......Therefore, use of the same blue colour in the same
shade and which blue shade is the blue shade of the
plaintiff's razors, the same will cause disparagement of
the plaintiff's razors in the facts of the present case and
consequently plaintiff will be caused grave and
irreparable prejudice as also irreparable harm to its
reputation and hence the defendant is for the present
restrained from showing in its impugned advertisement
the razors in the same blue colour of the plaintiff or any
blue colour which is deceptively similar to the blue colour
of the plaintiff's razors.
......
.........(ii) As per the ratio of the judgment in the case of
Dabur India Ltd (supra) it is seen that mis-
representation is not permitted. Counsel for the
defendant has sought to place reliance upon the report
of the U.K. Agency, Global Depilatories R& D Laboratory,
Hull, U.K and which report gives a conclusion that the
'Veet' hair removal cream of the defendant causes
smoothening of skin up to twice as long as shaving and
the defendant's representation is justified, but in my
opinion, this report having been commissioned at the
instance of the defendant and being not a report of a
neutral third party which the Court should accept at this
stage, hence the defendant cannot at this stage claim on
the basis of this report that defendant's cream for hair
removal is twice as better as compared to razors. During
the further course of the present proceedings, an
independent agency would be appointed by this Court for
the purpose of giving a report, and only then can the
Court come to a conclusion as to whether the defendant
is justified in contending that the hair removal cream is
twice as good as compared to hair removal by a razor.
Also, counsel for the plaintiff is justified in arguing that
the small sample size of just 30 persons is not such a
size which this Court should naturally accept to cause
deemed correctness of the report dated 11.9.2015 of the
U.K. Agency, Global Depilatories R& D Laboratory, Hull,
U.K. Therefore, the defendant is restrained from claiming
in its impugned advertisement that the hair removal by
using defendant's cream is twice as good as when
compared to hair removal by a razor."
7. By the said order, the learned Single Judge has kept the
interim application pending for 26th September, 2016. Learned
counsel for the appellant submits that the great prejudice has been
caused in view of interim order passed and if the said interim order
would continue till 26th September, 2016 by that the appellant has to
change almost the entire advertisement. He produced the samples
of the razors of both the parties, it appears that the shapes and
configurations of the razors of the respective parties are different.
There is also controversy between the parties about colour scheme
as to whether it has been copied by the appellant or not. As
according to the appellant, the colour scheme of the razors of two
rival parties is not similar and no monopoly of single colour blue can
be given to the respondent. He submits that the appellant has no
intention to disparage the product of the respondent.
8. Mr.A.K.Mata, learned Senior counsel appearing on behalf of
the respondent has stated that the samples produced in Court are
not the part of the trial court record but learned counsel for the
appellant has denied the same. He says that even otherwise, these
are samples of the respective parties.
9. With regard to second part of the order, admittedly the
appellant placed the reliance on the report of the U.K. Agency,
Global Depilatories R& D Laboratory, Hull, U.K. However, the said
report was not accepted by the learned Single Judge mainly on the
reason that the said report being not a report of a neutral third
party. Therefore, the appellant cannot on the basis of the said
report use its impugned advertisement that the hair removal by
using defendant's cream is twice as good as when compared to hair
removal by a razor. The learned Single Judge has also given the
reason that unless the third party report is given, the Court cannot
come to the conclusion as to whether the appellant/defendant is
justified in contending the same slogan.
10. The other important factor of the matter at present as
contended by the appellant is that the advertisement has been aired
continuously since 1st April, 2016 in the channels Puthuyugam TV.
The certificate from New Era Media Corporation Chennai Pvt.Ltd
dated 31st May, 2016 is produced. The respondent is admittedly the
competitor of the appellant. The presumption is that they must be
aware about the said advertisement whch was telecasted in the said
channel. The respondent/plaintiff in para 19 of the plaint has
mentioned that the appellant has started airing this advertisement
on 1st May, 2016. It is yet to be considered as to whether the
respondent has made the correct averment in the plaint or not.
However, prima facie it appears that the appellant was advertising
its product Veet in channels since 1st April, 2016. In this particular
litigation where the issue of disparagement of product by way of T.V.
advertisement is concerned, each day is fatal and the party who is
suing other party has to explain the delay of each day.
11. In view of commercial angle involved, the same principals of
delay as applied in several types of other IPR cases can not be
applied. Thus, till the next date after considering the overall
situation, the interim order passed on 1st June, 2016 shall remain
stayed.
12. List on 14th July, 2016 before roster Bench. In the meanwhile
four weeks time is granted to the respondent to file the counter
affidavit.
13. Dasti, under the signatures of the Court Master.
MANMOHAN SINGH
(VACATION JUDGE)
SANJEEV SACHDEVA
(VACATION JUDGE)
JUNE 06, 2016/jk
