HINDUSTAN UNILEVER LTD vs RECKITT BENCKISER (INDIA) PVT LTD

G.S. Sistani, J.

This is an appeal filed by the appellant herein (defendant in the suit) against the order dated 06.04.2018 passed in a suit for permanent injunction and

damages on account of disparagement and unfair trade practices instituted by the respondent herein (plaintiff in the suit).

At the outset, it may be noted that the appellant/defendant had appeared before the learned Single Judge on a caveat having been filed. We are

informed that the matter was heard before the pleadings could be completed and after the grant of an injunction, time has been granted to the

appellant/defendant to file the written statement and the matter has been placed before the Joint Registrar on 20.04.2018 for completion of the

pleadings.

In the impugned advertisement, the appellant/defendant has compared its 'Lifebuoy Soap' with the respondent's/plaintiffs product i.e. 'Dettol

Antiseptic Liquid'. The advertisement appeared for the first time through the electronic media on 02.04.2018.

Mr. Chander M. Lall, learned Senior Advocate appearing for the respondent has contended that the suit was instituted within the shortest possible

time on 04.04.2018 and the matter was listed for the first time on 5th April 2018 and thereafter on 6th April, 2018 when the impugned order was

passed. By an order dated 06.04.2018, the appellant has been 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/respondent herein. To appreciate the arguments of the

learned Senior Counsels appearing in this case, we deem it appropriate to scan the storyboard of the impugned advertisement which we find at page

44 to 49 of this appeal which we extract herein below :-

The prime grievance of the learned Senior Counsels appearing for the appellant/defendant is that in the absence of a reasonable opportunity having

been granted to file the written statement and reply to the application under Order 39 Rules 1 & 2 of CPC, serious prejudice has been caused to the

rights of the appellant/defendant. It is also contended that the learned Single Judge has extensively relied upon an order passed in CS(OS) No.

1832/2012 dated 13.05.2013 in an earlier litigation between the parties concerning the same very product. Mr. Sudhir Chandra, learned Senior

Advocate appearing for the appellant contends that the terms as set out in the said order do not apply to the facts of the present case and the

advertisement in question. He contends that the order dated 13.05.2013 had laid down the following four terms before the advertisement subject

matter CS(OS) No. 1834/2012 could be released:

a. remove the 'toys' in the advertisement.

b. remove the phrase ""two dhakans"" and the particular portion featuring the lady shown pouring liquid in the bucket by holding the bottle of the

antiseptic liquid in her hand.

c. remove the shot showing the cloud formation.

d. since green is 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.

It is urged before us that in the present advertisement no toys have been shown. The catch line of the respondent/plaintiff 'two dhakkans' is not part

of the present advertisement. The liquid poured in the bucket of water does not show a cloudy formation; a feature specific to the product of the

respondent/plaintiff and the green colour which is majorly associated with Dettol has not been used. Thus, for the learned Single Judge to have been

persuaded by the order dated 13.05.2013, is misplaced for the reason that in the impugned advertisement neither the product of the respondent/plaintiff

has been shown nor the bottle, which could identify the antiseptic liquid nor the catch line 'two Dhakkans' nor the green colour has been shown. It is

also contended that the advertisement does not show the product of the respondent/plaintiff in a poor light nor there is anything disparaging against the

respondent's/plaintiffs product It is highlighted by Mr. Sudhir Chandra that it is also the case of the respondent/plaintiff that the antiseptic liquid is a

germ killing product and the use of Dettol antiseptic liquid is prescribed to ensure that the water used for bathing is free from germs.

Mr. Sudhir Chandra, learned Senior Advocate has drawn the attention of the Court to para 19 of the plaint, which we reproduce as under:

In addition to the above, whilst being a germ killing product, owing to the quality of water in India and presence of germs in bathing water, the

plaintiff recommends use of Dettol Antiseptic Liquid in certain prescribed quantities (""one teaspoon to a bucket"") to ensure that the water used for

bathing is free from germs. The plaintiff has never recommended use of DETTOL Antiseptic Liquid, as a substitute for soaps or bathing gel or any

other product. It is relevant to state that soap has an entirely different function while bathing, as soap contains surfactants which when come in

contact with the human body cause germs to be attached to them and when soap is rinsed with water, it removes the germs from the body. The use of

Dettol Antiseptic liquid in bath water ensures that fresh germs are not deposited on the body after ringing as opposed to untreated water. Accordingly,

the plaintiffs Dettol Antiseptic Liquid used in limited quantity in bathing water acts as accessory to each other to give a complete bath that too in a

scenario where the water is impure. Accordingly, to promote its product, as an accessory to soap and certainly not as a substitute to soap, the plaintiff

prescribes use of its Dettol Antiseptic Liquid in limited quantities in bath water.

Relying on para 19, Mr. Sudhir Chandra contends that it is the case of the respondent/plaintiff that Dettol Antiseptic liquid is not a substitute for

soaps or bathing gels or any other product and thus, the advertisement in fact, only reiterates what is the stand of the respondent/plaintiff and has been

averred in para 19 of the plaint that the antiseptic liquid be used to remove germs from the bathing water and not the germs from the body. It is also

the case of the appellant/defendant that in case, reasonable opportunity is granted for filing the written statement and reply to the IA filed under Order

39 Rules 1 & 2, the appellant would be able to show that the comparison made in the advertisement is truthful and not that the product of the appellant

has been puffed up or the product of the appellant/defendant has been denigrated in any manner. In the light of the above submissions, Mr. Sudhir

Chandra has prayed that the interim order dated 06.04.2018 be vacated, since the respondent has not been able to make out a strong prima face case

nor balance of convenience is in favour of the respondent nor the respondent has been able to establish that irreparable loss would be suffered by

them.

Mr. Chander M. Lall, learned Senior Advocate appearing for the respondent/plaintiff submits that besides the reliance placed by the learned Single

Judge on the judgment passed on 13.05.2013, various other grounds were also urged by him but the same may not have been reflected in detail in the

order as the pleadings were yet to be completed and a full hearing is to be granted to both sides after the pleadings are completed. Mr. Lall also

submits that the parties before this Court have been locked in litigation in various matters including two suits which were filed before the Calcutta High

Court by the appellant/defendant and two suits were filed by the respondent/plaintiff. The Calcutta High Court granted injunctions in all the four suits.

However, the products in three suits were different being 'Vim' on the one hand and 'Dettol Healthy Kitchen' on the other, while in one case the

products were the same 'Dettol Antiseptic Liquid' and 'Lifebuoy Soap'. Mr. Lall contends that the orders passed in the aforesaid four matters have

attained finality although the suits are still pending as an appeal filed before the Division Bench by both the parties in all the four matters were

dismissed with slight modifications to the order of the learned Single Judge and thus the orders have attained finality. Mr. Lall has relied on the order

passed by the learned Single Judge of the Calcutta High Court extensively in support of his submissions that the grounds sought to be urged by the

appellant before this Court today were also raised before the Calcutta High Court and the same were rejected. Mr. Lall has also submitted that the

advertisement in issue falls foul of the Code for-Advertising Standards Council of India, the advertisement also falls foul of Section 4 of the Drugs and

Magic Remedies (objectionable advertisement) Act, 1954 read with Drugs and Cosmetics Act. It has also been contended that the similar

advertisement of the appellant/defendant has been restrained by the learned Single Judge of this Court. The order which we have noticed in the

aforegoing paras as also the order of the learned Single Judge of the Calcutta High Court, which was affirmed by the Division Bench of the Calcutta

High Court, which we have also noticed in the aforegoing paragraphs. Mr. Lall has also relied on Hindustan Unilever Limited v. Gujarat Co-operative

Milk Marketing Federation reported in MANU/MH/1197/2017 : (2017) 71 PTC 396 in support of his submission that merely because the products of

the respondent/plaintiff has not been named would not mean that such an advertisement would be permissible. Mr. Lall has also contended that the

balance convenience is in favour of the respondent/plaintiff as it has repeatedly been held that the advertisements on electronic media are likely to

have a stronger impact on the public at large and at a quicker pace than the print media advertisement. It is also submitted by Mr. Lall that no

prejudice would be caused to the appellant/defendant, if the injunction is continued till such time the pleadings are complete and the matter is finally

heard and on the contrary, the product of the respondent/plaintiff would be shown in a poor light and public would be misled in case the interim order is

vacated.

Mr. Sudhir Chandra has relied on a judgment of the Division Bench of this Court in Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. & Ors.

reported in MANU/DE/0225/2010 : ILR (2010) IV DELHI 489.

We have heard learned counsels for the parties.

We have examined the impugned order. A careful reading of the impugned order passed by the learned Single Judge in CS (OS) No. 1832/2012

would show that the learned Single Judge was persuaded by the reasoning in the order dated 13.05.2013. The aforesaid order of learned Single Judge

has been quoted in the impugned order in para 3, which we reproduce below:

The learned senior counsel appearing on behalf of the plaintiff has taken me through an order dated 13.05.2013 passed in IA No. 11467/2012 in CS

(OS) No. 1834/2012 between the same parties wherein the facts as alleged by the plaintiff are noted in para No. 4, more specifically in sub paras (iv)

(v) and (x) to (xiv) which are as under:

4.

iv. Plaintiff is the manufacturer of the famous antiseptic liquid DETTOL for over 70 years. 'Dettol' antiseptic liquid has an unparalleled medical history

of capturing over 85% of the market in India in this segment.

v. The active ingredient of 'Dettol liquid is chloroxylenol (PCMX). The other ingredient includes isopropyl alcohol, pine oil, castor oil soap, caramel,

water basically used for first aid purpose. The exclusive attribute of the said trademark is - its amber gold colour and the fact that it becomes milk y

when diluted in water. Also, the packaging of DETTOL is distinct, having a sword on the pack that acts as a mnemonic for fighting against germs and

infection.

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 plaintiffs product.

b. The liquid is poured from a bottle which is virtually identical to that of the plaintiffs antiseptic liquid bottle.

c. The liquid when poured into water becomes milky exactly like the plaintiff's product.

d. Thereafter, the advertisement claims plaintiffs product to be completely ineffective in warding off germs whereas shows that lifebuoy gives ""100%

germ protection.

xi. Virtually identical advertisement was issued by the Defendant's group in South Africa and by a detailed order passed by the Advertising Standards

Authority of South Africa, the respondent therein (defendant herein) was directed to withdraw the claims made by it.

xii. The language used by the father of the sick child in the advertisement emphasising on "" nahane ke paani mein 'do dhakkan' antiseptic liquid"" clearly

indicates to wards Dettol.

xiii. No other liquid except 'Dettol' create a cloud formation when diluted in water.

xiv. The disclaimer flashing below the screen in the television commercial is also very vague and blurred.

Adverting to the facts of the present case, having gone through the commercial not only in its text (as reproduced above) but also having watched

it on a DVD, the question here is whether the advertisement disparages or denigrates the antiseptic liquid of the plaintiff and also whether it only seek

s to project the superiority of the defendant's LIFEBUOY soap over an ordinary antiseptic liquid? The advertisement begins with the scene showing a

sick child lying with a few toys around in the display and the doctor entering the house and commenting that he has been invited yet again. Thereafter,

the doctor inquires about the hygiene habits of the child and the doctor asks: ""kya ye nahata hai roz"", to which the mother of the child replies: "" haan

nahane ke paani mein do dhakkan antiseptic liquid bedaltehai"" and the doctor mocking and ridiculing in reply says: "" aap bhee nahane mein sirf do

dhakkan, use balti toh bimar nai padegi, paani ke kitanu shayad nikal jayen, lek in body ke, yeh yahan se yahan, fir zukam, khansi, fiu"". In the

meanwhile, the commercial runs to demonstrate a lady pouring brown liquid with a tilted bottle in the bucket of water. The mother of the child then

proceeds to ask the doctor: ""to nahane mein isse better? And the doctor replies: ""100% germ protection, Advanced Lifebuoy"" and then appears two

different shields of protection, green signifying Dettol and Red signifying Lifebuoy wherein, the green side is left with a few germs and the red shows

k ill of all"". Once again lifebuoy is shown to have excellent germ killing capability whilst an antiseptic liquid is completely ineffective. The voice-over

also indicates the same. It is obvious that the advertisement displays the said so called ""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.

With aforesaid discussion, it is ostensibly clear that the advertisement disparages the plaintiffs antiseptic liquid and it is 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 is

displayed before the public at large, the basic principle that is followed is that the public tries to find the connectivity and the impact that advertisement

probably creates on them. 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 is thus 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 plaintiffs product and portrays the same

in bad light. Without a doubt comparative advertising is beneficial as it increases consumer awareness and therefore, it is permissible but not by pulling

down the reputation of your competitor by showing its product in debauched light. Moreover, 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.

Therefore, I am of the view that the defendant can telecast the advertisement only after deleting the following attributes as under:

a. remove the 'toys' in the advertisement.

b. 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.

c. Remove the shot showing the cloud formation.

d. Since green is 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 shad e.

I am, therefore, inclined to grant ad interim relief to the plaintiff and as against the defendant thereby restraining the defendant from telecasting the

impugned advertisement. However, the defendant will be well within its rights to telecast the same only after following the conditions as envisaged in

paragraph 68 (a) to (d) of the said judgment. Defendant is 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 at hand.

After extensively quoting the order passed in Suit being No. 1834 of 2012, in para 7 of the order, the learned Single Judge observed as under :-

It is cannot be said the conditions imposed vide order dated 13.05.2013 were only limited to the facts of the said case itself. In the earlier

advertisement too the word DETTOL was never used but because of the peculiar facts such conditions were imposed. A bare perusal of the

impugned advertisement do reveal features of earlier advertisement.

A reading of the order dated 13.05.2013 which we have extracted hereinabove would show that four distinct features of the product of the

respondent/plaintiff had been shown in the impugned advertisement subject matter of the said suit. The basic features being (i) colour of the liquid; (ii)

the liquid being poured from a bottle which was virtually identical to that with the respondent's/plaintiffs antiseptic liquid bottle (iii) the liquid when

poured into the water becoming milky. The learned Single Judge vide order dated 13.05.2013 imposed four conditions on the appellant/defendant

which we have extracted hereinabove. We are constraint to note that none of the four conditions would apply in the present advertisement as upon

examining the story board and visually examining the advertisement on the i-pad provided by the appellant, we find that this advertisement does not

contain any reference of 'two dhakkans', no cloud formation, green colour associated with Dettol. Thus, prima facie the reasoning of order dated

13.05.2013 would not apply stricto sensu to the present advertisement. We may also note that in the concluding para 69 of the judgment dated

13.05.2013, the learned Single Judge had not restrained the appellant/defendant from telecast of the advertisement but directed removal of the four

features which we have extracted above. We find that in the present advertisement none of the above four features are available. Mr. Lall has

strongly urged before us that it is not necessary for the appellant/defendant to have named the product of the respondent/plaintiff for the reason that

the respondent/plaintiff is the market leader with more than 80% share and any reference to an antiseptic liquid is obviously referred to the product of

the respondent/plaintiff. Mr. Lall has also strongly urged before us that the advertisement does not compare two like products as lifebuoy is a cosmetic

product while Dettol Antiseptic Liquid is a drug. In support of his submission, he has taken us extensively through the judgment of the Calcutta High

Court and some parts of the judgment of the Delhi High Court.

In the advertisement subject matter of the Calcutta High Court, the advertisement showed Lifebuoy soap on the shelf while Dettol Antiseptic

Liquid is being poured in a bucket. This advertisement has been filed along with this appeal at page 260 and the same is scanned below:

A mere glance at this advertisement would show that the attack was blatant as the exact product was not only shown but named. Similarly, in the

advertisement, subject matter of the decision before the Delhi High Court, all the necessary features of the product of the respondent/plaintiff were

shown. The effect of which will certainly be considered after the pleadings are complete and the matter is heard.

At this stage, learned counsel for the respondent submits that in case the Court is inclined to set aside the impugned order and to enable learned

Single Judge to hear the matter afresh, detailed reasoning should not be given as it would cause serious prejudice to the rights of the

respondent/plaintiff, who has an excellent case on merits. He also submits that in case the Court is inclined to set aside the order a time-frame should

be fixed for completion of the pleadings and hearing of the application. We set aside the impugned order dated 06.04.2018. As rightly suggested by

Mr. Lall, we refrain from giving detailed reasons lest it causes his prejudice to the rights of the respondent/plaintiff at the time of hearing before the

learned Single Judge.

With the consent of the parties, we fix the following time schedule for completion of pleadings :

(i) The appellant/defendant would file their written statement and reply to the interim application within seven days along with all the relevant

documents as per the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. Replication and

rejoinders shall be filed within four days thereafter.

(ii) I.A. 4428/2018 would be listed before the concerned court on 23.04.2018 for hearing.

We have fixed this schedule with the consent of both the parties and the parties have agreed to adhere to the same.

Till the hearing of the application, the order dated 06.04.2018 would be kept in abeyance. We request the learned Single Judge to hear the

application expeditiously with liberty to both the parties to urge all grounds available to them including the grounds urged before us today unaffected by

any observation made by us in the order passed today.

C.M.13949/2018 & 13950/2018

The applications stand disposed of in view of the order passed in the appeal.

Hindustan Unilever Ltd. vs. Reckitt Benckiser (India) Pvt. Ltd. (11.04.2018 - DELHC) : MANU/DE/1499/2018