2013 (6) TMI 211 - HC - Companies Law

Suit for commercial disparagement - 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. 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. 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. Held that - Perusing the documents placed on record including the newspaper advertisement same subtly yet certainly targets the plaintiff s brand DETTOL and its product DETTOL HEALTHY KITCHEN. - 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. Therefore, interim order has passed 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.

Summary

Issues Involved:
1. Commercial Disparagement
2. Comparative Advertising
3. Interim Injunction

Detailed Analysis:

1. Commercial Disparagement:
The plaintiff alleged that the defendant's advertisement published in the Sunday Times Edition on February 24, 2013, disparaged the plaintiff's product, DETTOL HEALTHY KITCHEN, by equating it to a "Harsh Antiseptic." The advertisement posed the question: "A Harsh Antiseptic or the power of 100 lemons - which one would you choose to clean your child's tiffin?" The plaintiff argued that this reference was directed at their brand DETTOL, misrepresenting that DETTOL HEALTHY KITCHEN and DETTOL ANTISEPTIC LIQUID have the same ingredients. The plaintiff further contended that the advertisement suggested that DETTOL ANTISEPTIC LIQUID, which contains chloroxylenol (PCMX), was repackaged as DETTOL HEALTHY KITCHEN, which contains Lactic Acid. The plaintiff claimed that such representation was misleading and denigrating, as it implied their product was unsuitable for cleaning utensils.

2. Comparative Advertising:
The defendant argued that their advertisement did not specifically reference DETTOL HEALTHY KITCHEN Dish & Slab Gel and merely aimed to inform consumers about the unsuitability of harsh antiseptics for cleaning utensils. The defendant maintained that the term "harsh antiseptic" referred to highly concentrated antiseptics and that the plaintiff's product did not fall under this category. The defendant also asserted their right to puffery under Article 19(1)(a) of the Constitution, which protects commercial speech. The court examined the principles of comparative advertising, emphasizing that while puffery is allowed, it must not be false, misleading, or disparaging to a rival product. The court referenced multiple precedents, including Dabur India Ltd v. Colortek Meghalaya Pvt. Ltd and Pepsi Co. Inc. & Ors vs. Hindustan Coca Cola Ltd. & Anr., which outline that advertisements should not denigrate or disparage rival products and must be truthful.

3. Interim Injunction:
The court evaluated whether the impugned advertisement made a reference, either express or implied, to the plaintiff's product and whether it denigrated it. The court noted that DETTOL is synonymous with antiseptic in the FMCG market in India and that the advertisement's use of the term "harsh antiseptic" could mislead consumers into associating it with DETTOL products. The court found that the advertisement's implication that antiseptics are unsuitable for cleaning utensils was directed at the plaintiff's product, thereby denigrating it. The court concluded that the plaintiff had established a prima facie case of commercial disparagement and that the balance of convenience and irreparable injury favored the plaintiff. Consequently, the court granted an interim injunction restraining the defendant from publishing the impugned advertisement or any similar advertisement that disparages the plaintiff's brand DETTOL or its product DETTOL HEALTHY KITCHEN.

Conclusion:
The court determined that the defendant's advertisement subtly targeted the plaintiff's brand DETTOL and its product DETTOL HEALTHY KITCHEN, thereby denigrating it. The plaintiff successfully demonstrated that the advertisement misled consumers and caused irreparable harm to their reputation. An interim injunction was granted to prevent the defendant from continuing the disparaging advertisement.