2013 (11) TMI 750 - HC - Companies Law

Interim Injunction under order 39 Rule 1 and 2 of Civil Procedure Code telecast of a television commercial of defendant s Lifebuoy Soap, which as per the plaintiff is disparaging and denigrating the reputation and goodwill of the plaintiff in the commercial market. - Held that - Ad interim relief as to the injunction was granted to the plaintiff and as against the defendant thereby restraining the defendant from telecasting the impugned advertisement - the defendant will be well within its rights to telecast the same only after following the conditions of the judgment - Defendant was also restrained from inserting or adding any such kind of piece/feature in the advertisement which would otherwise directly or indirectly result in disparaging the said product of the plaintiff till the final disposal of the case. It was clear that the advertisement disparages the plaintiff s antiseptic liquid and it was 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 was displayed before the public at large, the basic principle that was followed was that the public tried to find the connectivity and the impact that advertisement probably creates on them - Dabur India Lmt V. Colgate Palmolive India Ltd. 2004 (9) TMI 603 - DELHI HIGH COURT - 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 was 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 and portrays the same in bad light - Without a doubt comparative advertising was beneficial as it increases consumer awareness and therefore, it was permissible but not by pulling down the reputation of your competitor by showing its product in debauched light - advertising is a medium through which an advertiser can establish his brand in the market, but at the same time there are certain set of laws that cannot be deserted - Denigrating or causing direct harm to one s product which has attained appreciation in its genre in terms of usage and application, would amount to slander, which would also cause great prejudice to the public interest, as the question is not of deciding which product is better, but also of public awareness - Because, misleading and disparaging advertisement would not only mellow down the faith of the public but would also result in misleading them. Whether the advertisement merely puffed the product of the advertiser, or in the garb of doing so, was denigrating the product of the plaintiff - It was palpable to state as per the assertions made by the plaintiff and the aforesaid discussion, it was clear that the advertisement aims at denigrating the product of the plaintiff by indicating to existing and future customers that the product of the plaintiff was ineffective - A significant aspect of the manner in which puffery should be interpreted in the case was the broadly liberal attitude adopted towards untrue and imprecise statements - The emphasis of the Court in this regard was to prevent any loss or injury to the interests of the competing manufacturer or seller, with any active disparagement of a competing product being impermissible. Based on the triple test for the grant of ad-interim injunction viz (1) whether the plaintiff has strong prima facie case to succeed on merits (2) whether the balance of convenience lies in favour of the plaintiff and (3) whether the plaintiff will suffer irreparable loss and injury if the injunction was not granted in its favour - the court finds that all the three principles lean in favour of the plaintiff and against the defendant - The plaintiff had been able to established a prima-facie case in its favour - If the plaintiff was not granted interim injunction, the telecast of the television commercial by the defendant in the aforesaid manner definitely pose disparagement against the plaintiff s product, and was 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. The defendant can telecast the advertisement only after deleting the attributes as to remove the toys in the advertisement - 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 - Remove the shot showing the cloud formation - green was 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.

Summary

Issues Involved:
1. Alleged disparagement and denigration of the plaintiff's product (Dettol antiseptic liquid) by the defendant's television commercial for Lifebuoy Soap.
2. Comparative advertising and its legal boundaries.
3. Public interest and consumer perception.
4. Prima facie case for an interim injunction.

Issue-Wise Detailed Analysis:

1. Alleged Disparagement and Denigration:
The plaintiff argued that the defendant's television commercial disparaged their product, Dettol antiseptic liquid, by depicting it as ineffective in comparison to Lifebuoy Soap. The commercial showed a sick child whose parents used an antiseptic liquid in his bath water. The liquid, visually similar to Dettol, was shown as ineffective, while Lifebuoy was claimed to provide "100% Better germ Protector." The plaintiff contended that this portrayal was malicious and intended to damage their market reputation.

The defendant countered that their advertisement did not specifically reference Dettol and that the bottle shape and cloud formation shown were generic and not exclusive to Dettol. They argued that the commercial merely highlighted the superior germ protection of their soap.

2. Comparative Advertising and Legal Boundaries:
The court examined whether the commercial crossed the line from permissible comparative advertising to impermissible disparagement. Comparative advertising is allowed to the extent that it promotes one's product over another, but it cannot denigrate the competitor's product. The court referred to established legal principles, noting that while puffing one's product is permissible, denigrating a competitor's product is not.

3. Public Interest and Consumer Perception:
The court emphasized the impact of television commercials on the average consumer. It noted that advertisements must be evaluated from the perspective of an ordinary person of average intelligence. The commercial's portrayal of the antiseptic liquid as ineffective and harmful could mislead consumers and damage the plaintiff's reputation.

4. Prima Facie Case for Interim Injunction:
The court found that the plaintiff had established a prima facie case for an interim injunction. The commercial's depiction of the antiseptic liquid was likely to cause irreparable harm to the plaintiff's reputation and goodwill. The balance of convenience also favored the plaintiff, as the continued telecast of the commercial would further damage their market position.

Conclusion:
The court concluded that the commercial disparaged the plaintiff's product and granted an interim injunction. The defendant was restrained from telecasting the advertisement unless they removed specific elements that disparaged the plaintiff's product. The court directed the defendant to:
- Remove the toys shown in the advertisement.
- Remove the phrase "two dhakkans" and the scene of pouring the liquid.
- Remove the cloud formation shot.
- Change the green color scheme associated with Dettol to a different shade.

The court's decision aimed to balance the defendant's right to advertise with the plaintiff's right to protect their product's reputation. The interim relief was granted to prevent further harm to the plaintiff until the final disposal of the case.