TaxTMI 
TaxTMI 
2013 (11) TMI 750
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....of the usage of Dettol as an antiseptic liquid in bathing water. The advertisement starts with the doctor entering the house of a sick child where he inquires about the hygiene habits of the child from his parents and also if the child takes bath regularly. To which the parents respond in affirmative and explain that they even dilute "2 dhakkans" of antiseptic liquid in the bucket of water. The next screen shot shows liquid being poured into the bucket of bathing water, the bottle of which is virtually identical in shape to the bottle used by the plaintiff for its "Dettol' antiseptic liquid. The liquid when poured into water becomes milky (cloudy) exactly like the plaintiff's product, which according to the plaintiff is the exclusive feature of the product. The advertisement thereafter proceeds to show that the plaintiff's product is completely ineffective in warding off infections and illness, which as per the plaintiff is a malafide on defendant's part, trouncing the goodwill of the plaintiff in the market. It further proceeds to compare the defendant's cosmetic toilet soap with the plaintiff's antiseptic liquid as being "100% Better germ Protector". It is averred that intention ....
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....NSPECTUS OF FACTS, AS PER THE PLAINT: i. The plaintiff (Reckitt Benckiser) is an internationally renowned corporation and through its subsidiaries and affiliate companies operates in several countries around the world. ii. The business comprises of various consumer and healthcare products including antiseptic liquid, toilet care products, surface care products, pharmaceuticals, insecticides, and food products which bear world famous trademarks including Harpic, Dettol, Mortein, Cherry Blossom. iii. Incorporated on July 5, 1951 Reckitt Coleman and Benckiser, pursuant to the world wide merger between Reckitt Coleman Plc and Benckiser, a Dutch company, the name of the Plaintiff changed from Reckitt & Coleman India Ltd. to Reckitt Benckiser (India) Ltd. iv. Plaintiff is the manufacturer of the famous antiseptic liquid DETTOL for over 70 years. "Dettol' antiseptic liquid has an unparalleled medical history of capturing over 85 % of the market in India in this segment. v. The active ingredient of "Dettol' liquid is chloroxylenol (PCMX). The other ingredient includes isopropyl alcohol, pine oil, castor oil soap, caramel, water basically used for first aid purpose. The exclu....
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....he disclaimer flashing below the screen in the television commercial is also very vague and blurred. 5. A BRIEF CONSPECTUS OF FACTS, AS PER THE WRITTEN STATEMENT: i. No reference to Dettol antiseptic liquid has been made in the impugned advertisement and the impugned television commercial contains no reference to the brand name or product of the plaintiff. ii. The assertions of the plaintiff in its plaint are baseless and their fallacy is evident from the snapshots of the advertisement. iii. Shape of the bottle shown in the impugned advertisement is different from that of the plaintiff and the shoulders of the bottle do not possess a continuous curve rather there is a square curve that angles at the edges. iv. Right from drinks to refreshments to cleaning liquids, clouds of various colours are formed upon their being mixed with water. As a matter of fact, such clouds are formed when many other products are mixed with water such as comfort fabric conditioner, milk etc. Therefore, the cloud formation is not peculiarly associated to the plaintiff's product. v. The impugned advertisement also carries the disclaimer that "graphic visualization does not represent any br....
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....e bottle of "Dettol' is so similar to that of the displayed one that the consumer would not be able to distinguish between the two and would presume the comparison is being made to the plaintiff's product. Also, the label is not clearly visible but the shape of the label, the curves are exactly similar and any amateur consumer would grasp the same to be identical in features to that of Dettol antiseptic liquid. 8. Counsel further submitted that the liquid inside the bottle is almost same in colour (Amber color), whereas SUTHOL is different (proper green) and Savlon is orange. Therefore, the consumers worldwide would definitely associate themselves to the product and the colour presence, they can relate so as to what is the colour of Dettol. Counsel further submitted that the manner in which the lady holds the bottle in the advertisement and tilts it towards the bucket of water is similar to the advertisement of "Dettol' in particular, the design/label is white in colour which is same as that of the bottle of "Dettol', depicting another peculiar aspect of the two. 9. Further, elaborating on the impugned advertisement, counsel submitted that the boy is repeatedly falling sick a....
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..... There also the same clouding effect was shown, which was white and in India it has been made yellow only after suffering an injunction in South Africa. Learned Counsel further submitted that the said order is under challenge, though there is no stay. 13. Learned Counsel further submitted that the word "dhakkan" has a very adverse connotation in Hindi language, at the very behest that Dettol is the only antiseptic liquid capturing the major market and the only antiseptic liquid with the similar advertisement who promotes the liquid by showing that the usage of Dettol is not just restricted to bathing water, but it is quite vast, in hospitals, for hygiene, to maintain clean surroundings etc. Dettol is used in almost every genre in order to maintain proper hygiene and clean atmosphere. 14. Elaborating on the attributes of the plaintiff's advertisement, Counsel submitted that in Dettol's advertisement, the toys are lying on the side of the sick child, and it goes like, the doctor says "if you must not be washing your child's toys with Dettol that is why he/she is falling sick" and the similar picture is framed even in defendant's advertisement wherein the toys are lying next to....
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....aging the plaintiff's product with false pleas and display is wrong and not acceptable. 17. In support of his arguments, Counsel for the plaintiff placed reliance on the following judgments: a) Colgate Palmolive (India) Limited V. Anchor Health & Beauty Care Pvt. Ltd., 2009 (40) PTC 653 (Mad) b) Reckitt Benckiser (India) Ltd. V. Hindustan Lever Ltd. 151(2008)DLT650 c) Dabur India Lmt V. Colgate Palmolive India Ltd., 2004 (29) PTC 1 (Del.) d) Dabur India Ltd. V. Colortek Meghalaya Pvt. Ltd. And Godrej Saralee, 2010 (44) PTC 54 (Del) e) Dabur India limited v. Emami Ltd. , 2004 (29) PTC 1 (Del) f) Eureka Forbes Ltd. V. Pentair Water India Pvt Ltd., 2007 (35) PTC 556(karn) g) Frankfinn Aviation Services Pvt Ltd V. Akash Gupta 2010 (42) PTC 294 (Del). 18. Per contra, refuting the arguments of the plaintiff, Mr.Sandeep Sethi , learned Senior Advocate submitted that the commercial advertisement actually depicts "two dhakkans' of antiseptic liquid in a bucket full of water may sanitize the water but would not clean the body, what is better than diluting "two dhakkans' of liquid is a bath with defendants soap. Therefore, the quantity of "2 dhakkans' does not give ....
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.... water H2O. 23. Learned Senior advocate further submitted that therefore, it is quite clear that for bathing purpose, no dilution level or ratio is prescribed, but it is simply written, bucket full of water, and as per their own criteria a bucket full of water would mean 3000ml of water, edging the ratio to be 1:3000.This being their own recommendation, the test report of the plaintiffs at page 115 is contradictory to this effect. The Ld. Senior Counsel further submitted that it is clearly shown that Dettol's advice to the consumers at the back of the bottle of dettol, is 1 tablespoon in 200 ml of water (assuming the same to be a litre), it is quite manifest that a person if takes bath requires at least 15 litres of water, a minimum quantity a bucket can store, therefore even for bathing purposes the same ratio is given as what is prescribed for a mug of water for the purpose of shaving, i.e. 1 table spoon of Dettol in a bucket full of water. Counsel further submitted that if we even assume that in 1:200, one table spoon is diluted in 1 litre of water, that is almost a bottle of drinking water, one cannot take a bath with such small quantity of water. Therefore, t....
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....no dilution level or procedure has been prescribed for lifebuoy. 29. Ld. Senior counsel also submitted that not going into the nittygritty' s of the reports, but assuming how the test is supposed to be conducted as a prudent person, by applying the soap on to the body, creating lather for at least 30 seconds , and then wash away the soap and examine the log reduction is an emphatic way. 30. Ld. Senior placed reliance on the report given by Microchem Silikker wherein the test sample concentration as taken by them is 1:1500and 8% of the lifebuoy solution was taken for conducting the tests.3.58 is the log reduction that was obtained by the defendant's product , lifebuoy when brought in contact with water and was applied on the body with lather formation. Learned counsel further submitted that it clearly signifies the defendant's product being better to that of the plaintiff's. 31. Mr.Sethi, learned senior advocate further invited the attention of this court to the reports submitted by the defendant , which ascertain that Dettol antiseptic liquid when brought in contact for 1 minute with water results in between 1.3 to 1.99 log reduction and whereas lifebuoy results inbetween3....
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.... nikalte hain", does lifebuoy kills more germs than an antiseptic liquid? "isse paani ke kitanu nikal jaye". Therefore, there is no denial of the fact, when antiseptic liquid is poured into water, it does make the water clean and rid of germs but the impression on the consumer of word "NIKAL' is critical, in the defendant's advertisement it is purporting to show that what happens to the bucket of water with DETTOL antiseptic liquid, the same would happen with the bar of lifebuoy soap on the consumer's body, so it is better to use lifebuoy soap. Lifebuoy is so much superior, even better than medicines is what they are showing, which can be clearly adjudged from the impugned advertisement. Even the depiction of the advertisement where it starts with a snapshot of toys and the child is shown in twenty prints clearly tries to imitate the Plaintiffs Advertisement. 35. Learned counsel for the Plaintiff further submitted that the counsel for the defendant is completely digressing from the advertisement , the defendant in their advertisement are trying to manipulate the public by portraying the antiseptic liquid (dettol) bathing with the same causes cholera, typhoid. Counsel for the pla....
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.... that the colour of the liquid used in the impugned advertisement is also similar to that of Dettol and even the shape of the bottle clearly resembles the plaintiff's bottle of Dettol antiseptic liquid. Thus the reputation and goodwill of the plaintiff's product is suffering at the cost of the impugned advertisement wherein very mischievously, the defendant portrays that Lifebuoy is better than an antiseptic liquid having 100% germ protection quality. 40. There are various test reports that have been relied upon by the defendant as well as the petitioner, which appear to be relevant in supporting the comparative study to determine which is a better germ protector but the authenticity of the same cannot be tested at this stage. One cannot even do a deep study of these reports or depend upon the same as they are the reports given by the agencies engaged by both the parties individually, who have conducted these tests and research. However, for convenience, the summary of the details of the relevant reports and results are given as under: Test Reports Results 1. Microchem Silliker dated 14.02.2011 Superior log reductions of organisms by contact with lifebuoy soap bar as....
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....lasses and the level of impact of such advertisements on the consumer is much greater than a print advertisement where each word has to be read, analysed and understood. Advertisers therefore will have to tread much more carefully when creating comparative advertisements for television. 44. The law in regard to commercial disparagement is crystal clear i.e. a trader can puff up his goods in comparison to his competitors goods but he cannot denigrate or disparage his competitors while doing so. Meaning thereby that comparative advertising is allowed to the extent of a trader comparing his goods with the goods of another trader and establishing superiority of his goods over that of others, but while doing so he cannot say that the goods of his competitor are bad, inferior, or undesirable. In case he makes any such nuances, it would be an act of constituting "product disparagement'. Such comparison leading to disparagement of rival's product is not allowed. 45. According to Garner Bryan, A Black's Law Dictionary, seventh edition(West Group Minnesota) 1999, the word "disparage' means to connect unequally, or to dishonour (something or someone) by comparison: or to discredit unjus....
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....ole question of a dry point of law such as we are discussing here is; where does the line lie' On the one hand, it appears to me that the law is that any trader is entitled to puff his own goods, even though such puff must, as a matter of pure logic, involve the denigration of his rival's goods. Thus in the well known case of the three adjoining tailors who put notices in their respective windows reading: 'The best tailor in the world', 'The best tailor in this town', and 'The best tailor in this street', none of the three committed an actionable offence. Where, however, the situation is not that the trader is puffing his own goods, but turns to denigrate those of his rival, then, in my opinion, the situation is not so clear cut. Obviously the statement: 'My goods are better than X's' is only a more dramatic presentation of what is implicit in the statement: 'My goods are the best in the world'. Accordingly, I do not think such a statement would be actionable. At the other end of the scale, if what is said is: 'My goods are better than X's, because X's are absolute rubbish', then it is established by dicta of Lord Shand in the House of Lords in White v. Mellin (1895) AC 154, whi....
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....hitener and selling their product under the brand name "Ujala'. The advertisement of the defendants depicted that the colour blue (which was of plaintiff's product) was uneconomical and the average blue was the most expensive to whiten the clothes. It had further been added `what is more, you have to use lots of blue per wash'. While making the said comment the container of the plaintiff had been shown upside down and it had further been shown that the liquid was gushing out. The court observed as under: "The object is obviously to show that the product of the petitioner priced at Rs.10/- gushes out as a quirt and not in drops while using and Therefore, it is an expensive way to whiten clothes. The container of the petitioner as produced by Mr. Chakrabotry was put by me up-side-down and I found that the liquid packed in the container comes out drop unless one squeezes the container, which is made of plastic. It has then been shown in the advertisement that blue is a product of obsolete technology and Therefore, it cannot dissolve completely in water and as such forms sediments at the bottom of the wash bucket. The said assertion it appears to me is not a presentation of a techno....
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.... 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..... 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." 54. Reiterating the same principle, in the recent decision of this Hon'ble court, in the case of Reckitt Benckiser (India) Ltd. Vs. Hindustan Lever Limited (supra), position of law was carved out as, for a claim of commercial disparagement to succeed in cases of comparative disparagement, the court is to ap....
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....es on offer. Principal among its applications has been the case of auctioneers, who, within limits, have always been allowed to use language which has been strictly perhaps not literally true; thus for example to take note of one instance, in Hope v. Walter [1900] 1 Ch 257: "I do not attach any importance to the word `eligible': it is the ordinary auctioneer's language". In other words, in the kind of situation where one expects, as a matter of ordinary common experience, a person to use a certain amount of hyperbole in the description of goods, property or services, the courts will do what any ordinary reasonable man would do, namely, take it with a large pinch of salt. Where, however, the situation is not that the trader is puffing his own goods, but turns to denigrate those of his rival, then, in my opinion, the situation is not so clear cut. Obviously the statement: "My goods are better than X's" is only a more dramatic presentation of what is implicit in the statement: "My goods are the best in the world". Accordingly, I do not think such a statement would be actionable. At the other end of the scale, if what is said is: "My goods are better than X's", because X's are absol....
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....call them bad or inferior. It has been so held in the following paragraph that: "16. It can, thus, clearly be seen that it is a settled position of law that a tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. He can also say that his goods are better than his competitors, even though such statement is untrue. He can also say that his product is best in the world or better than his competitors' and also can compare the advantages of his product over the products of the others. However, while doing so, he cannot say his competitors are bad and, if he does so, he really slanders the goods of his competitors and defames his competitors and their goods which is not permissible and only in such a case the Court would be competent to grant order of injunction restraining repetition of such defamation. 17. It is equally settled that to decide the question of disparagement, the following factors are to be kept in mind: (i) Intent of commercial (ii) Manner of the commercial(iii) Storyline of the commercial and the message sought to be conveyed by the commercial. Out of the above, "manner of the commercial", is very impor....
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....er injures reputation of formers business. The germane portion of the judgment is as follows: "24. In view of settled law that though a manufacturer/tradesman is entitled to declare that his goods are best in the world and may also compare his goods with his competitors elaborating the advantages of his goods over the goods of others, he cannot defame or disparage the goods of another manufacturer/trader and if he does so, the aggrieved trader would be entitled to seek relief including the relief of damages for defamation and a prohibitory injunction." 59. In Colgate Palmolive (India) Limited V. Anchor Health & Beauty Care Pvt. Ltd.(supra), the Madras High Court while deciding an application under Order 39 Rule 1 & 2, held as under "52. It is the overall impression that customer gets as to the source and origin of the goods from visual impression of colour combination, shape of the container, packaging etc. If illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and getup, it amounts to passing off. In o....
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....ertising clearly embark the following principles which could be summarized as under: a) A tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue. b) He can say that his goods are better than his competitors'. c) He can even compare the advantages of the two goods d) He, however, cannot, while saying that his goods are better than his competitor's , say that his competitor's goods are bad. If he says so, he really slanders the goods of his competitors and their goods, which is not permissible in law. e) If there is no defamation to the goods or the manufacture of such goods no action lies, but if there is such defamation, an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining them to perform such acts. In order to satisfy the test of comparative disparagement, the plaintiff has to establish the following key elements: a) A false or misleading statement of fact has been made about his product; b) That the statement is deceiving or has the potential to deceive, the substantial segment of prospective consumer and; c) The deceptio....
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....n's business is no evidence of malice: see Dunlop Pneumatic Tyre Co. v. . Maison Talbot [1904] 20 T.L.R 579." 63. Adverting to the facts of the present case, having gone through the commercial not only in its text (as reproduced above) but also having watched it on a DVD, the question here is whether the advertisement disparages or denigrates the antiseptic liquid of the plaintiff and also whether it only seeks to project the superiority of the defendant's LIFEBUOY soap over an ordinary antiseptic liquid? The advertisement begins with the scene showing a sick child lying with a few toys around in the display and the doctor entering the house and commenting that he has been invited yet again. Thereafter, the doctor inquires about the hygiene habits of the child and the doctor asks: "kya ye nahata hai roz", to which the mother of the child replies: " haan nahane ke paani mein do dhakkan antiseptic liquid be daltehai" and the doctor mocking and ridiculing in reply says: " aap bhee nahane mein sirf do dhakkan, use balti toh bimar nai padegi, paani ke kitanu shayad nikal jayen, lekin body ke, yeh yahan se yahan , fir zukam, khansi, flu" . In the meanwhile, the commercial runs to demo....
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.... not an advertisement which seeks merely or only to promote the superiority of the defendant's "LIFEBUOY' soap over an ordinary antiseptic liquid. When the commercial is displayed before the public at large, the basic principle that is followed is that the public tries to find the connectivity and the impact that advertisement probably creates on them. If "X' would raise the standards of its product by claiming the rivals products "Y' to be bad and not effective displaying similar/ comparative attributes of the two, the same would be bad in law. If it were a case of mere promotion of superiority of the defendant's product, alone, the plaintiff would not have had a case as that would have only betokened a permissible "better" or "best" statement. The advertisement comprises of two parts; one which denigrates and disparages the product of the plaintiff and the other which promotes the purported superiority of defendant's LIFEBUOY soap. There is thus a hint of some malice involved in the commercial in respect of the defendant's product - indeed, it would be appropriate to delete certain relevant attributes of the defendant's advertisement which clearly hits on the plaintiff's product ....
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....by the defendant in the aforesaid manner definitely pose disparagement against the plaintiff's product, and is definitely detrimental to plaintiff's interest and would also cause an irreparable loss and injury to the plaintiff. The balance of convenience also lies in favour of the plaintiff and against the defendant. 68. Therefore, I am of the view that the defendant can telecast the advertisement only after deleting the following attributes as under: a. remove the "toys' in the advertisement. b. remove the phrase "two dhakkans" and the particular portion featuring the lady shown pouring liquid in the bucket by holding the bottle of the antiseptic liquid in her hand. c. Remove the shot showing the cloud formation. d. Since green is the colour majorly associated with "Dettol', therefore also change the colour scheme showing the comparison between the two products in the television commercial and change the green colour to a different shade. 69. I am, therefore, inclined to grant ad interim relief to the plaintiff and as against the defendant thereby restraining the defendant from telecasting the impugned advertisement. However, the defendant will be well within its....