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TMI Blog2012 (7) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff is a public limited company incorporated under the provisions of the Companies Act 1966 and carries on business of manufacturing and selling of consumer products including mosquito repellents. The plaintiffs claim to be a market leaders in the field of mosquito repellent in India. The defendant No.2 is also a public limited company incorporated under the Companies Act and carries on business of selling mosquito repellents and is competitor of the plaintiffs in the field of mosquito repellents. The plaintiffs are manufacturing mosquito repellents in various types such as mats, refills, coils and liquid vaporizers under the trademark "Good Knight". According to the plaintiffs, the mosquito repellents with a trademark Goodnight are sold since 1984. It is the case of the plaintiffs that the mosquito repellents of the plaintiffs, in particular, Good Knight liquid vaporizer mosquito repellent bears distinctive label which is predominantly red in colour with a thin silver lining, being an essential predominant feature of its packaging/ trade dress. It is the case of the plaintiffs that the plaintiffs came to know recently that the defendants have launched three commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs. The Learned Counsel relies on the judgment of the Delhi High Court in the case of Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd., MIPR 2010 (3) 0314 Del.; Reckitt Benckiser (India) Ltd. v. Hindustan Lever Limited, 2008 (38) PTC 139; Dabur India Limited v. Colgate Palmolive India Ltd., AIR 2005 Del. 102 and of Madras High Court in the case of Annamalayar Agencies v. VVS & Sons Pvt.Ltd. & Ors., 2008 (38) PTC 37 (Mad.) and of Calcutta High Court in the case of Reckitt & Colman of India Ltd. v. M.P. Ramchandran, 1999 PTC (19) 741. 4. As against this, Shri Chagla, learned senior counsel appearing for the defendants submits that apprehension of the plaintiffs that the advertisements in question tries to disparage the product of the plaintiffs is totally ill-founded. It is submitted that the part of the advertisement, which according to the plaintiffs disparage their product, is seen hardly for a second. He submits that it is improbable that any ordinary person would identify the said bottle shown in the beginning of the advertisement to be that of the plaintiffs' product. Learned Counsel submits that the advertisement is required to be seen as a whole. Even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court in Appeal No.322/1991 (Maganlal Kuberdas Kapadia v. Themis Chemicals Ltd.) decided on 22nd April 1991. 5. I will first deal with the contention of the defendant that the plaintiff is not entitled to equitable relief on the ground of suppression of material facts. No doubt, the law on the point is very clear that if a party seeking equitable relief approaches this Court by suppressing some vital material which would have bearing on the issue as to whether relief could be granted in its favour or not, then such party would not be entitled to any relief from this Court. The principles that who seeks equity must do equity and a party coming to the Court must come with clean hands are well settled. In that view of the matter, though various judgments are cited in support of the said proposition, I do not find it necessary to go into that aspect of the matter. The only question is as to whether the alleged suppression is first of all suppression or not and even if it be, whether such suppression is of such a nature which would have bearing upon the question of grant of relief in favour of the plaintiff or not. The defendants allege that though the advertisements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no defamation to the goods or to the manufacture 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. 8. For appreciating the rival submissions it will also be necessary to reproduce the story board of three advertisements which is as under: Story Board of Advertisement No.1. Video Audio Film opens on a manholdinga racket. Standing in a room. The man is seen switching on his liquid vaporizer machine.  While the man sits to rest, mosquitoes start disturbing him so he shooing themwithhis racket. VO:What you are upto,getting ready to play inWimbledon?... The mosquitoes continue to trouble him so he stands up on his chair and tries killing them by waving his racket furiously. VO:... Listen Sir, MissPadukonewill be reallyimpressed. He gets really fed up of the mosquitoes, and continues shooing them with racket. VO:Oh master! What areyou doing, shadowboxing?... The man almost gives uponthe mosquitoes and sits on the chair. But themosquitoesdon’t leave hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng mosquitoes nearthe boy, he accidentallytopples the structure made by the boy while the MVO says... MVO“Or lifting your handsandplaying hifi?Or is it a new method 9. In the case of Dabur India Limited v. Colgate Palmolive India Ltd. (cited supra), the sum and substance of TV advertisement complained of was that a Cinestar was seen stopping the purchasers of Lal Dant Manjan powder. He further informs them of the ill effects of such Lal Dant Manjan by rubbing it on the purchaser's spectacles which leaves marks which are termed by Cinestar as being akin to sandpapering. He also endorses the Colgate's (defendant therein) tooth power as being 16 times less abrasive and non damaging to the spectacles. He is heard telling the purchaser that it is easy to change spectacles but not the teeth. In the said case also, the product name of the plaintiff therein was not named. However, it was contended that red container/bottle used in the advertisement was identical with that one used by the plaintiff therein. In the said case the defendant had also expressed its willingness to drop the red container/bottle which, according to the plaintiffs identifies its product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reen coloured packaging. The new shape of the DETTOL Original toilet soap with the curved edges and the curvature in the middle is clearly displayed on the product packaging, which is further indicative of the importance given to the shape by the plaintiff in its marketing of the product. The packaging (Ext. PW1/8) also establishes the fact that although white is also used, green is the pre-dominant colour. Although, the brand name, logo or the sword device does not appear in the orange bar of soap shown in the advertisement (Ext. PW1/2), there can be no misgiving that the bar of soap which has been shown in the said advertisement is of a colour similar to that of the plaintiff's DETTOL soap. The contours, curvature as well as the overall shape of the orange bar of soap in the advertisement itself, are virtually the same as that of the contours, curvature and overall shape of the plaintiff's DETTOL Original soap. Moreover, the clear impression given in the advertisement is that the said orange bar of soap has been taken out from a green wrapper/ packaging. It must also be noted that the design of the plaintiff's soap has been registered by the plaintiff as indicated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled in a green bottle. The advertisement No.1 impugned in the said case shows two coconuts, one in green colour and another in blue colour and an actress wearing green dress appears on the scene and asks a question "which is natural?", and then she herself picks up a green coconut and says that it is natural. In advertisement No.2, an actress wearing green dress picks up one of the green colour plastic bottles of VVD arranged in a shelf and says this is 100% pure and natural and this is what I want. Then the next shot shows an actress wearing green dress in the foreground and the lady wearing blue saree in the background. The lady wearing blue saree has a blue colour bottle in her left hand and a VVD bottle in her right hand. She looks at the blue bottle which is in her left hand and shakes her head disapprovingly and puts the bottle down. Then she looks at the VVD bottle in the right hand and lifts the bottle up and says VVD Gold, this is what I want. The learned Judge, observed thus: 33. Insofar as advertisements 2 and 3 are concerned, they definitely refer to a plain unnamed blue bottle and drives home a message that the blue bottle does not contain 100% pure and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;, because Robin Blue is also a blue. It was sought to be contended that insinuations against all are permissible, though the same may not be permissible against one particular individual. I do not accept the same for the simple reason that while saying all are bad it was being said all and everyone is bad and anyone fitting the description of everyone is affected thereby. ..... ..... ..... In the instant case the object of the advertisement was to convey to the customers of the blue including those of the plaintiff that if you use blue to whiten your washed clothes you will get washed clothes with blue patches. This could not be done. 14. In so far reliance placed by Learned Counsel for the defendant No.2 on the judgment of the Division Bench of the Delhi High Court in the case of Dabur India Ltd. v. Colortek Meghalaya Pvt.Ltd. & Anr (supra) is concerned, in the said case the Division Bench was considering an appeal against the order of learned single Judge refusing to grant injunction in favour of the plaintiff therein. It was the contention of the plaintiff that the defendants while promoting their product Good Knight Naturals mosquito repellent in the advertisement wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the submission of Learned Counsel. There is no suggestion that any other mosquito repellent cream causes rashes or allergy or is sticky. All that it is suggested is that if a mosquito repellent cream is applied on the skin (which could be any mosquito repellent cream) there may be an apprehension of rashes and allergy. Generally speaking, this may be possible depending on upon the quality of the cream, the sensitivity of the skin of the consumer and the frequency of use etc. - we cannot say one way or the other. The commercial does not suggest that any particular mosquito repellent cream or all mosquito repellent creams cause rashes and allergy. In fact, the Respondents are also trying to promote a mosquito repellent cream and it can hardly be conceived that all mosquito repellent creams (which would naturally include the Respondents' product) cause rashes or allergy. All that the Respondent's are suggesting is that since their product contains tulsi, lavender and milk protein such apprehensions are greatly reduced or that they should not reasonably exist. (emphasis supplied) It can, thus, clearly be seen that in the facts of the said case, the Division Bench of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vertisement shows a man holding racket standing in the room and is seen switching on the liquid vaporizer machine. It shows that though the machine is put on the mosquitoes continue troubling him and so he starts shooing them with his racket. Thereafter standing on the chair he is shown trying to kill them by waving his racket furiously. Thereafter some oral utterances are made by the famous actor Madhavan and at last defendant's product zooms into the screen and then zooms out and fits itself into a machine and the actor says, "of MAXO. A single drop is sufficient. The action is instant. Besides, it fits any machine." Similarly, there are two other advertisements. Since the entire story line is reproduced hereinabove, I do not find it necessary to repeat again the sum and substance of the advertisements. At the request of the parties, I have personally seen all the three advertisements on the screen of P.C. In all the three advertisements, immediately as soon as film starts, a man is shown switching on the liquid vaporizer. The bottle containing the red liquid vaporizer is shown with a label which is of a dark red colour having a silver linings. I have personally com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atics 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. 20. In so far as contention of the defendants that there are other similar labels which are having red colour in predominance is concerned, I have examined the labels which are placed on record by the defendants. One of the labels is that of the defendants themselves and, in any case, it is a combination of red, white and black colours with a dark gray border. In so far as Odomos label is concerned, I have personally seen the bottle of which photograph is placed on record. The said bottle is manufactured in 2007. Apart from that the said label is combination of orange, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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