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TMI Blog2013 (9) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... dwill and reputation of the Plaintiffs' toothpaste Colgate Dental Cream Strong Teeth (hereafter 'Colgate Strong Teeth') and that the impugned advertisements tarnish, slander and defame the worth and reputation of the Plaintiffs' brand and products. 2. The above suit was filed by HUL on 13th August 2013. It was first listed on the same date when Defendant HUL appeared on caveat. Mr. N.K. Kaul, learned Senior counsel for HUL sought one day's time to respond to the application filed by the Plaintiffs for an ad interim injunction. The application was set down for hearing on the next day i.e. on 14th August 2013 i.e. at 3 p.m. 3. On 14th August 2013, the short reply filed by the Defendant and the enclosed documents were taken on record in the Court. A copy thereof was served on learned counsel for the Plaintiffs. 4. The impugned television commercial, provided by the Plaintiffs in a CD and Defendant in a flash drive, was viewed in the Court several times during the course of arguments. The print advertisement which appeared in the front page of the newspaper 'Hindustan Times' New Delhi Edition dated 11th August 2013 was produced in the Court. Submissions on behalf of the Plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial and the printed advertisements, he submitted that they violate the ASCI's minimum lettering size and duration specifications. These require that the Supers should be clearly legible. On TV ads they should be long enough for the full message to be read by an average viewer on a standard domestic TV set. For print ads, the font size of the Supers should be a minimum 6 and 7 points for a 100 column centimeter or less and more than 100 column centimetre or equivalent size ads respectively. 8. Mr. Lall submitted that HUL had a history of making false claims in respect of its products. He referred to an order dated 5th and 6th November 1997 of the Monopolistic and Restrictive Trade Practices Commission ('MRTPC') which restrained HUL from claiming that Pepsodent was 102% better than Colgate. In that advertisement HUL had not expressly named the competing product as Colgate but had used the expressions 'the famous and renowned toothpaste' and 'leading toothpaste'. The appeal against the said order filed by the HUL had been dismissed by the Supreme Court by an order dated 17th December 1997 reported as Hindustan Unilever Limited v. Colgate Palmolive AIR 1998 SC 526. 9. Mr. Lall su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also that the claims made in the impugned advertisements were untruthful and misleading. In particular, the focus was on the ingredient Triclosan in the Pepsodent GSP toothpaste, the use of which was claimed to have enhanced the delivery of Triclosan in the mouth. The claim was that Triclosan remains in the mouth four hours after brushing. It was submitted that the TV commercial purports to depict a 'preventive cavity test' when there is no such known test in the world of dentistry, and that the 'Colgate boy' appearing on the left side of the TV screen is shown to have failed the cavity test whereas the 'Pepsodent boy' appearing on the right side of the TV screen not only passes the test but the 'Colgate boy' also concedes this. Mr. Lall referred to the expressions of the faces on the mothers of the respective boys and submitted that the mother of the Colgate boy was unhappy and worried which, according to him, showed Colgate in a poor light. He focussed on the voice over towards the end of the TV commercial which claimed that Pepsodent was 130% better than Colgate which, according to him, was a wholly false claim when in fact Colgate Strong Teeth was indexed at 100%. He submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and a possible injunction against it. Therefore, no prejudice would be caused to HUL if the interim injunction as prayed for was granted. Submissions on behalf of the Defendant 14. Mr. Neeraj Kishan Kaul, learned Senior counsel appearing for the Defendant HUL, reiterated the two principles settled in the decision in Dabur Colortek. One was that the comparative advertisements were permissible. The second was that the manufacturer of a product could claim that his product was better than that of the competitor. He submitted that some element of denigration in that process was inevitable. What the Court has emphasised is that it should not be malicious so as to cause injury to the product of the competitor. He referred to the decision in Marico Limited v. Adani Wilmar Ltd. 199 (2013) DLT 663 where the Single Judge applied the principles settled in Dabur Colortek and declined an injunction in similar circumstances. 15. Mr. Kaul submitted that Courts ought not to adopt a hyper technical view and analyse an advertisement like a statute or a clause in some Will or agreement. He submitted that, taken as a whole, neither the TV commercial nor the print advertisement in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for 'Good Knight Naturals' mosquito repellant cream, disparaged the Plaintiff's mosquito repellent cream 'Odomos'. The learned Single Judge reiterated the principles settled in Godrej Sara Lee Ltd. that comparative advertisement is permissible as long as it does not have negative overtones. It was further pointed out that for a Plaintiff to succeed in an action based on malicious falsehood, the necessary ingredients are that (i) a false statement was made which is calculated to cause financial damage (ii) that it was made maliciously with an intention to cause injury and (iii) the impugned statement has resulted in a special damage. The law in England was referred to as laying down that: (i) a trader is entitled to say that his goods were the best; in doing so he could compare his goods with another (ii) say that his goods are better than that of the rival trader in this or that respect (iii) whether the statement made was disparaging of his rival's product depended on whether it would be taken 'seriously' by a 'reasonble man'; an alternative test would be whether the trader had in fact highlighted any specific defect in his rival's goods and (iv) a statement made by a trader puf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others. (d) He however, cannot, while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible. (e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation. These propositions have been accepted by learned Single Judges of this Court in several cases, but in view of the law laid down by the Supreme Court in Tata Press Ltd. v. MTNL (1995) 5 SCC 139 that false, misleading, unfair or deceptive advertising is not protected commercial speech, we are of the opinion that propositions (a) and (b) above and the first part of proposition (c) are not good law. While hyped-up advertising may be permissible, it cannot transgress the grey area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o underscore that the observations hereafter are of a prima facie nature and at a preliminary stage of the case. They are not to be understood as an expression of a conclusive opinion on the merits of the contentions of either party. 23. The Court is aware that the advertisements have to be viewed as a whole and not analysed like the provisions of a statute. Turning first to the TV advertisement, the Court is of the view that too much cannot be read into the expressions on the faces of the mothers of the Colgate and Pepsodent boys respectively to connect those expressions to the quality of the products. The running theme of the TV advertisement is a comparison between the two products to emphasise that Pepsodent GSP is a better toothpaste than Colgate Strong Teeth when it comes to a toothpaste having Triclosan as an ingredient. The indexing of the Colgate Strong Teeth at 100% and in relation thereto showing Pepsodent GSP as having 130% germ attack power is significant from the point of view of the truthfulness of the claim. 24. The story line of the TV advertisement begins with the 'Preventive Cavity Test' with the Colgate boy on the left side of the screen with his mother standi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire screen is only of the Pepsodent side. Mr. Lall urged that this meant that Colgate Strong Teeth was 'zero' when compared to '130%' of Pepsodent GSP. The Court is unable to view it that way. It is arguable that the appearance of the two indices at the bottom of the left and right screens as well as the 'Super' which shows that Colgate Strong Teethy is indexed 100% and Pepsodent Germi Check 130% will enable a discerning viewer to appreciate the comparison in its proper perspective. In any event, the claim of 130% germi check power appears more consistent with the Defendant puffing up Pepsodent GSP to show that it is better than Colgate Strong Teeth. It is difficult to view this as denigrating, slandering or rubbishing Colgate Strong Teeth. 26. Next it was contended by Mr. Lall that from this moment onwards, the Triclosan soldiers are shown to be increasing on the Pepsodent side whereas they are shown to be either decreasing or non-existent on the Colgate side. Ultimately, the entire screen is taken up by the Triclosan soldiers on the Pepsodent side. When the sequence is seen in the context of the advertisement, the explanation, as suggested by the Defendant, appears plausible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tishat Germ Attack Power'. When loosely translated it means "When compared to Colgate, New Pepsodent Germi Check (has) 130% Germ Attack Power". This again is a matter of comparison of two products and showing one product to be better than the other. If one were to apply the Dabur Colortek principles, the impugned TV advertisement neither defames nor slanders Colgate Strong Teeth. It does not suggest that Colgate Strong Teeth is 'bad'. Much less, as was suggested by Mr. Lall, does it convey that the use of Colgate Strong Teeth would result in cavities developing. The impugned print advertisement 29. Turning to the print version of the advertisement, the Court is not persuaded to agree with the Plaintiffs that the word 'Attaaack' appearing in the phrase "It's time to Attaaaack!" actually means that it is time to attack Colgate and not the germs. This submission overlooks the statement immediately below: 'Pepsodent now better than Colgate Strong Teeth delivers 130% Germ Attack Power'. This is further clarified at the bottom of the advertisement where the words 'Non-stop Attaaaaack!' is above the words (although in smaller font) "On cavity causing germs"'. The attention span of a vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Colgate Strong Teeth used to be an ordinary chalk based toothpaste without any anti-germ actives. When Pepsodent was launched as a superior product, Colgate introduced Triclosan with a 0.1% concentration thus giving the consumer a superior choice. Thereafter, Pepsodent increased the Triclosan concentration to 0.2% and added fluoride to the formation. Ultimately, the complaint before the MRTPC was withdrawn since the Plaintiffs themselves had added fluoride and 0.2% Triclosan to Colgate Strong Teeth. It is thus argued by Mr.Kaul that the said event actually resulted in superior products being made available to the consumer and the market leader was forced to change its formulation which it continues to do till date. The above submissions warrant a detailed examination by the Court whether there is justification for the Plaintffs' charge that launching disparaging advertisements against a market leader's product is a 'habit' of the Defendant. That exercise is not required to be undertaken at this stage. 33. Advertisements that compare the product of a trader with the product of a market leader can offer the consumer better information about the product. They can also help to improve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egment of Rs.37 to 39. This perhaps explains why it has taken up Colgate Strong Teeth for comparison. The 'Super' on the packaging of Pepsodent GSP that it is superior vis-a-vis toothpastes not having anti germ actives does not preclude the Defendant from comparing, in the impugned advertisements, its product with one having anti germ actives and showing that its product is better than such a toothpaste as well. This Court is unable to discern at this stage any unfairness in this practice that may attract the clauses of the ASCI Code or even Section 30(1) (a) and (b) of the TM Act. It is also not possible, without further evidence being led in the matter, for the Court to come to a definite conclusion regarding violation of Section 17 (c) of the DACA by the Defendant. Conclusion 36. For the aforementioned reasons, the Court is not persuaded to hold at this stage that the impugned TV advertisement or the impugned printed advertisement by HUL is disparaging of or denigrating the product Colgate Strong Teeth of the Plaintiffs. The Court is not satisfied that the Plaintiff has made out a prima facie case for the grant of an ad interim injunction as prayed for. Reiterating the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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