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TMI Blog2013 (11) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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. - CS(OS) 1834/2012 & IA No. 11467/2012 (O-39, R-1&2) - - - Dated:- 13-5-2013 - Hon'ble Mr. Justice Kailash Gambhir,JJ. For the Petitioner : Mr. C. M. Lall, Advocate with Ms. Ekta Sarin and Ms. Ankita Ubreja, Advocates For the Respondent : Mr. Sandeep Sethi, Sr. Advocate with Mr. Sameer Parekh, Kumar Shashank, Mr. Nitin Thukral and Ms. Preeti Gupta, Advocates ORDER IA No. 11467/2012 in CS (OS) No. 1834/2012 1. By this order, I shall dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct, does not hold back in spending millions of dollars on advertising and marketing. Advertising is a subsection of marketing, a form of communication intended to persuade people to purchase the products or the services of a particular brand. The discerning fact is that in such a competitive market, effective advertising techniques are being incorporated to promote one s product with addition of high profile names like various actors and renowned personalities, nonetheless it is an indubitable fact that we get swayed by the reflecting names in the advertisements and tend to develop a parlous connect with the actors endorsing the products as they are the idol for their aficionadas. Through the entire process, television makes a major contribution, beginning with awareness, where it makes its greatest impact. When spoken of media boosted awareness, a survey shows that 43% of those questioned said television, as in our society especially the middle class, relates highly to the television promotions. It is one of the influential modes that monitors and captures the major segment of the society. And particularly when the product is being endorsed by a well-known cinestar, the advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: YEAR SALES FIGURES (RUPEES/MILLION) VOLUME (KILOLITRE 2009 1501 12371 2010 13931 1795 2011 14333 1903 viii. Television commercial introduced by the defendant is disparaging the antiseptic liquid of the plaintiff by comparing it with its lifebuoy bar soap, defendant s product. ix. The impugned advertisement features all the aspects which clearly demonstrate that the defendant has copied the peculiar features borne by the plaintiff s product and in order to attain market recognition over the plaintiff s product, defendant has tried to disparage the plaintiff s product. x. The peculiar features that have been copied are: a. visual of a liquid that is being poured is of the same colour as that of the plaintiff s product. b. The liquid is poured from a bottle which is virtually identical to that of the plaintiff s antiseptic liquid bottle. c. The liquid when poured into water becomes milky exactly like the plaintiff s product. d. Thereafter, the advertisement claims plaintiff s product to be completely ineffective in warding off germs whereas shows that lifebuoy giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff submitted that the present case is filed on the three principle grounds: (i) the advertisement is against the public interest, (ii) generic disparagement of all the antiseptic liquids of which the plaintiff has a 85% market share, finally (iii) disparagement of the plaintiff s Dettol antiseptic liquid. Learned Counsel for the Plaintiff further added that the plaintiff is the owner of DETTOL, which is an antiseptic liquid, used for killing germs whereas Lifebuoy soap is a cosmetic product under the Drug Cosmetic Act, being a cosmetic product it does not bear the germ killing qualities and hence, comparing the two different products is out of the pretext of law. 7. Learned counsel further submitted that as far as antiseptic liquids are concerned, DETTOL rules over 85% of the market, Savalon 8.4% and Suthol 4.5%, in total 97 % of the market share is captured by these three antiseptic liquids and the survey for the same is placed on record. Referring to Page 2 of the plaint, which displays the screenshots of the advertisement in comparison to an antiseptic liquid, learned counsel submitted that only Dettol creates a clouding effect when poured in water and this is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piece of the whole story board, and is a peculiar attribute borne by the plaintiffs product, a white cloud with the black background is an exclusive characteristic of the plaintiffs advertisement, which the defendants have copied and infringed upon, though there is a difference of colour (here the colour is yellow) and it s not a white cloud, however another important aspect is that Dettol is the only antiseptic liquid which bears this characteristic, none of the other antiseptic liquids so far in the knowledge of the plaintiffs bear this exclusive attribute of being transformed into the shape of cloud once diluted in water. The following points out ,that the defendant in their advertisement has copied all the peculiar features borne by the plaintiff s advertisement or its product, clearly demonstrating that it is the plaintiff s product that is being targeted and disparaged, following are the exclusive features that similar in the impugned advertisement: a) Cloud formation b) Sick child c) Lady pouring the liquid from the bottle d) toys 11. Counsel further submitted that disparagement of the antiseptic liquid also lies where the doctor in the advertisement says- ONLY TW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai. Counsel further submitted that the product of the defendants is highly misrepresented; it s a complete mischief, slack tactics to promote his product by disparaging plaintiff s goodwill in the market and the advertisement of the defendant s ends 10 infection wale kitanu ek suraksha , is completely hypothetical, illusionary, not true, saying 100% better protection than any other antiseptic liquid which is a frivolous and vexatious representation of their product. 15. Learned counsel further submitted that the order of the Advertising Standards Council shows basically how the two products have been substantiated and if it s been done in a similar manner, then the goods of the latter cannot suffer at the behest of the recent one. 16. Counsel further going into the technicalities, submitted that 8% of lifebuoy sample concentration is being compared to .33 I.A.No.11467/2012 in C.S.(OS) No.1834/2012 Page 18 of 65 % of plaintiffs product, antiseptic liquid DETTOL. the title of the testis MICROCHEM SILICURE, as per which: An antiseptic liquids germ kill capability is 1:1500 i.e. .33 percent, in the reports as shown by the defendants, which is a clear indication that its plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its on the plaintiffs product Dettol. b) Plaintiff has not even been able to demonstrate that any statement in their advertisement is false, as in the advertisement it has merely portrayed that our soap is better for hygienic bath. The plaintiff has not been able to prove that any of the statement made by the Defendant in the advertisement is false; therefore it also does not serve the purpose of the second test that has to be proved in order to ascertain disparagement, c) That apart from failure of the plaintiff to prove these statements being false, the test reports filed by the plaintiffs itself, bears out the same to be true. 21. Ld. Senior Counsel for the Defendant further submitted that in the test reports filed by the plaintiff itself, it can easily be made out that the statements made by the defendant in the advertisement are true and correct. Learned senior counsel further submitted that in the test report dated 6.6.2012, it is held that the Dettol brown liquid diluted at 1:300 does result in some or no kill (3.3 log or below). 22. Learned Senior Advocate further depicting the label on Dettol s bottle, submitted that it clearly describes in what ratio the antisep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the European Standards. 25. It was also submitted by the Ld. Senior Counsel that this standard for a soap is inappropriate as dilution for a soap is established at 8%, and when the same is applied on the body, lather is formed, it is at friction with body that kills germs and that is how it has to be tested for determining its efficacy in terms of a soap. The prescribed dilution level as per the independent agencies referred to by the defendant, for soap is 8% (being a solid substance). ANTI MICRO ACCURACY test shows that 8% solution in hard water is the accepted standard of dilution of a soap for comparison of soaps. 26. Ld. Senior Counsel also brought the attention of this court on the technical note- related to a literature, wherein it has been mentioned that what quantity of commercial soaps are required to be tested in aqua solutions i.e. 8%. 27. Learned Counsel further submitted that the plaintiff inexplicably adopts a standard if 1:200 while conducting a test for Dettol and Lifebuoy. The said report is certainly in favour of the defendant because dilution of 1 ltr of Dettol soap results in some or no kill, and bucket of water is approximately 15 litres, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Institute of public Health Engineers, India, learned senior advocate further submitted that even in the letter by an expert on this subject says that lifebuoy soap is the most effective option in a bathing application to gain protection from germs. Learned senior advocate further submitted that Centre for Disease Control and Prevention, in its research has clarified that wash hand reduces catching of such harmful diseases. Primary recommendation for reducing germs is by using soap and water. Therefore, for complete protection, merely an antiseptic liquid in water does not give you a clean bath, An acknowledgment that merely a spoon of antiseptic liquid does not give a complete protection against germs. 33. In support of his arguments, the learned Senior Counsel for the Defendant placed reliance on the following judgments: a) Imperial tobacco co. v. Albert Bonnan AIR 1928 CAC 1, page 17, four ingredients . b) Reckit Benckiser (India) ltd V. Naga Ltd ors., 104 (2003) DLT 490 c) Dabur India ltd V. Colortek Meghalaya Pvt. Ltd. Anr. , 2010 (44) 254.(Del.) (DB) 34. Counsel for the plaintiff in rejoinder argued that the plaintiff is not complaining about the quality of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of a story board, which is shown as under. 38. Having analysed the Television Commercial (TVC), the moot question before this court is: Does the commercial telecast by the respondent disparage the product of the plaintiff and if so, whether the plaintiff is entitled to an injunction against the telecast. 39. There is no iota of doubt that the plaintiff and the defendant s company are individually well renowned in the Indian market. In the league of antiseptic liquid, as per the plaintiff it captures 85% of the market; it is widely used in hospitals, homes, clinics etc. In the present petition, the plaintiff is aggrieved by the television commercial telecasted by the defendant, wherein it shows a child frequently falling sick and a few toys displayed in the background, followed by a doctor inquiring about his hygiene habits and the parents proudly telling the doctor that they use antiseptic liquid in the bathing water. The diagnosis by the doctor appears to be that the child is frequently falling sick owing to the use of antiseptic liquid in bathing water. Further the apprehension raised by the plaintiff is that the commercial proceeds with the lady pouri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of 8%. If one converts the concentration levels of the Dettol product in the tests into percentages, they come to about 0.067% (1:1500) and 0.033% (1:3000). This is significantly less than the concentration level (8%) at which Lifebuoy was tested. To put it differently, the concentration level at which Lifebuoy soap was tested was approximately 120 and 240 times as strong as the concentration levels of the Dettol product. 42. This appears at a first glance to be a grossly unfair basis for comparison. Although there does not seem to be any suggested pack dilutions for testing or comparing the two products or explaining as to why the 8% concentration level is an appropriate use concentration for Lifebuoy or .33 % for Dettol, nor does it say why it would be appropriate to compare with these dilution levels, as for Dettol its significantly lower. However, I do not find the arguments of the counsel for the defendant convincing in the said regard. Nevertheless, the efficacy of these tests reports submitted by both the parties would be well decided by this Court after the trial. 43. Be that as it may, the television commercial should be construed and tested from the perspective of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth". 47. As stated in Business torts in Massachusetts, 1st Edition , 2002, Chapter 9 DEFAMATION, COMMERCIAL DISPARAGEMENT, AND FALSE ADVERTISING JULIA HUSTON, ESQ. SARAH C. PECK, ESQ. Bromberg Sunstein LLP, Boston, which defines commercial disparagement as under: Commercial disparagement is a common law tort closely related to defamation. It has been defined as a false statement intended to call into question the quality of a competitor s goods or services in order to inflict pecuniary harm. Picker Int l, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D. Mass. 1994). 48. Comparative advertising is often supported on the basis of the argument that advertising is commercial speech and is therefore protected by Article (19) (1) (a) of the constitution ( Refer :Tata Press Ltd. V. MTNL Ltd. , AIR 1995 SC 2438). However freedom of speech and expression does not permit anyone to disrepute or denigrate the other and it would be a little far-fetched to say that an advertiser has the liberty to disparage the product of his competitor without any check, under the garb of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions of Salmond on Torts. 50. The three English cases; White vs Mellin (1895) AC 154 HL, The Royal Baking Powder Company vs Wright Crosssley Co. (1901) 18 R.P.C. 95 and De Beers Abrasive Products Ltd. Ors. Vs International General Electric Co. of New York Ltd. (supra), summed up the law relating to false advertising causing injury to a rival traders group pithily and in a nutshell lay down the following principles: I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. II) He can also say that his goods are better than his competitors', even though such statement is untrue. III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others. IV) 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. V) If there is no defamation to the goods or to the manufacturer of such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated in the case of Reckitt Colman of India Ltd. v. Kiwi T.T.K. Ltd. 1996 (16) PTC 393 (Del.) wherein again, the product of the plaintiff, namely, Cherry Polish was shown in a disparaging manner as the advertisement showed a bottle of KIWI (defendant's product) which does not drip as against the bottle described as "OTHERS" which was held to be that of plaintiff's because of red blob on the surface which represents CHERRY which dripped. An interlocutory application under Order 39 Rule 1 and 2 CPC was preferred by the plaintiff , the aforesaid five principles laid down by the Calcutta High Court in Reckitt Colman of India Ltd. v. M.P. Ramachandran and Anr. (supra) have been chased as the law on the subject. This court observed as under: 12. The settled law on the subject appears to be that a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods and the same will not give a cause of action to other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation to the goods of the manufacturer so doing. However, a manufacturer is not entitled to say that hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted 19 April, QBD Morland J. observed as under: 22. In my judgment when considering comparative advertising in relation to a claim for malicious falsehood the test that the Court should apply whether in relation to slander of goods or slander of a financial product is whether the financial service provider in puffing his own product has overstepped the permissible limit of denigration or disparagement of his rival's product so that a reasonable man would take the claim seriously. In DSG Retail Ltd. v. Comet Group PLC (2002) EWHC 116, while considering the question as to where the line is to be drawn between mere puffery and actionable statements, it was noticed that this question had been addressed by Walton J in De Beers Abrasive Products Ltd and Ors. v. International General Electric Co Ltd. (1975) 1 WLR 972, as under: What precisely is the law on this point? It is a blinding glimpse of the obvious to say that there must be a dividing line between statements that are actionable and those which are not; and the sole question upon a dry point of law such as we are discussing here is: where does that line lie? On the one hand, it appears to me that the law is that any trader i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, blustering, and boasting upon which no reasonable buyer would rely and is not actionable. It was also observed that "Puffing" may also consist of a general claim of superiority over comparable goods that is so vague that it will be understood as merely the seller's expression of opinion. It was further noted that an exaggerated advertising claim which is placed with an intent to influence the consumer's buying decision cannot be dismissed as mere puffing. These two decisions, and what is stated in McCarthy, stress the point that (a) between clear-cut cases of permissible comparative advertising and impermissible "rubbishing" of a rival's product there may yet be a wide field of cases and (b) the dividing line in such cases would have to drawn based on the test whether a reasonable man would take the claim of the alleged slanderer seriously or take it with the proverbial 'large pinch of salt' and dismiss it as mere puffery. If it is the former then, it is a case of disparagement and if it is the latter then, it is a case of mere puffery which is not actionable. 55. The judgment reported as McDonalds Hamburgers Ltd. v. Burgerking (UK) Ltd. [1987] F.S.R. 112, warned that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then an action would lie. From the storyline and the manner of the advertisements in question, it can clearly be seen that the message that is sought to be given in the advertisements, is that even after the machine with product containing label alike plaintiff's product is put on, it has no effect and the mosquitoes go on troubling which require the person in the room to indulge in acrobatics etc. It is to be noted that the advertisement campaign or visual media has an immediate impact on the viewers and possibly purchaser's mind, particularly, when a well known cinestar is endorsing it. It is further to be noted that the matter has to be looked from the view point of the ordinary person of average intelligence. Though the advertisements in question may show the product having a label alike that of plaintiff's product for a few seconds, the possibility of the same being registered in the mind of an average consumer and linking it with the ineffectiveness of the product cannot be ruled out. 57. In Dabur v. Emami (supra), in the commercial shown on TV projected Chayawanprash in a negative manner as the hero while holding bottle of Himani Sona-Chandi Chayawanprash (defendant's p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod has been imprinted upon the minds of customers it certainly is liable to cause not only confusion but also dilution of distinctiveness of colour combination. Colour combination, get up, lay out and size of container is sort of trade dress which involves overall image of the product's features. There is a wide protection against imitation or deceptive similarities of trade dress as trade dress is the soul for identification of the goods as to its source and origin and as such is liable to cause confusion in the minds of unwary customers particularly those who have been using the product over a long period. 55. The difference in the style of the words appearing on the container or packing identifying its manufacturers by way of style, colour combination or textures or graphics is certainly significant or relevant for determining the overall imitation of the container but if a product having distinctive colour combination, style, shape and texture has been in the market for decades as in this case it is in the market since 1951 it leads to ineluctable inference of having acquired secondary meaning on account of its reputation and goodwill earned at huge cost. 56. It is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble only to an extent where the public at large can digest the same. The test is whether a reasonable man would take the claim being made, as one made seriously. The more precise and specific the claim, the more likely it is for the public to take it seriously. 62. The learned Counsel for the defendant had placed reliance on Imperial Tobacco Co.v. Albert Bonnan, AIR1928 Cal1 , wherein it was observed: Now, to succeed in an action for slander of goods, the plaintiff must allege and prove (1) that the statement complained of was made of and concerning his goods; (2) that it was false, (3) that it was published maliciously i.e. With the intention of injuring him and (4) that he has suffered special damage thereby. A trader is entitled to commend his own goods and state that they are better than the goods of another and if he does so, no action will lie against him, whatever damage may ensue from such statement. See White v.Mellin [1895] A.C.154. It is otherwise where a trader does not limit himself to a comparison of his goods with those manufactured by another trader and a mere statement that they are inferior in quality to his own, but goes further and makes an untrue stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d " antiseptic liquid" in bad light and as something harmful. Thereafter, the advertisement proceeds with the introduction of the defendant's LIFEBUOY soap and the manner in which it spreads a protective red wall thereby removing and dissipating the germs. 64. The advertisement can be viewed in two parts. One part is where as the advertisement begins, its showing display of a few toys with the sick child which is a similar aspect to that of the plaintiff s advertisement. The other part is the two dhakkans of liquid is shown as being harmful and ineffective, which as per the visualisation of the television commercial, does lay an adverse connotation and a lady pouring a brown liquid in the bucket, in the same manner and display as that of the plaintiff s television commercial and where the defendant's product is shown as having the qualities of providing a 100 % germ protection. There can be no grievance in respect where the qualities of the defendant's soap are sought to be demonstrated: whether those qualities exist or not is not an issue. That part, even if untrue, would be mere puffery. However, the part of the advertisement, where the antiseptic liquid has been slighted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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. 66. Therefore, the question determined by the Court is 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 is palpable to state as per the assertions made by the plaintiff and the aforesaid discussion, it is 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 is ineffective. A significant aspect of the manner in which puffery should be interpreted in this case is the broadly liberal attitude adopted towards untrue and imprecise statements. The emphasis of the Court in this regard is 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. 67. In the light of the above discussion and based on the triple test for the grant of ad-interim injunctio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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