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TMI Blog2013 (6) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - CS (OS) No. 375/2013 - - - Dated:- 14-5-2013 - M. L. Mehta,JJ. For the Plaintiff : Mr. C. M. Lall, Adv. with Ms. Nancy Roy, Ms. Ekta Sarin, Mr. Jawahar Lal, Advs. For the Respondents : Mr.Sandeep Sethi, Sr.Adv. with Ms.Rukmani Bobde, Mr.Kumar Shashank, Advs. ORDER 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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-Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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