Madras High Court
Reckitt Benckiser (India) Private ... vs Itc Limited
Author: M.Duraiswamy
Bench: M.Duraiswamy, T.V.Thamilselvi
O.S.A.(CAD).Nos.98 to 100 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.03.2022
Delivered on : 17.03.2022
CORAM :
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
O.S.A.(CAD).Nos.98 to 100 of 2021
and C.M.P.Nos.17120 to 17122 of 2021
Reckitt Benckiser (India) Private Limited
having its Registered Office at
Plot No.48, Institutional Area,
Section 32, Haryana – 122 001. .. Appellants in all 3 O.S.As
Vs.
ITC Limited,
ITC Centre, 4th Floor,
760, Anna Salai,
Chennai – 600 002
rep by its Constituted Attorney
P.Ramkumar .. Respondent in all 3 O.S.As
Appeals filed under Section 13 of the Commercial Courts Act, 2015
against the judgment and decree dated 06.10.2021 in O.A.Nos.554 to 556 of
2021 in C.S.(Comm. Div.) No.55 of 2021.
Page 1/95
https://www.mhc.tn.gov.in/judis
O.S.A.(CAD).Nos.98 to 100 of 2021
For Appellant : Mr.Chander Lal, Senior Counsel
(in all 3 O.S.As) for Mr.R.Saravana Kumar
Mr.E.Veda Bagath Singh
Mr.R.Jawahar Lal
Mrs.Nancy Roy
For Respondent : Dr.Abishek Manu Singhvi, Senior Counsel
(in all 3 O.S.As) for Mr.Arun C.Mohan
Mr.Jaideep Gupta, Senior Counsel
Mr.C.Mani Shankar, Senior Counsel
Mr.Amit Bhandari
Mr.K.S.Suresh
Mr.Karthik Selvaraj
Ms.Chandini Pradeep Kumar
COMMON JUDGMENT
M.DURAISWAMY, J.
Since the facts relating to the filing of the Original Side Appeals are common, all the three appeals are disposed of by this common judgment.
2.The above Original Side Appeals have been filed by the appellant as against the order of the learned Single Judge dated 06.10.2021 made in O.A.Nos.554 to 556 of 2021 in C.S.(Comm.Div.) No.55 of 2021.
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3.The respondent filed a suit in C.S. (Comm. Div.).No.55 of 2021 for the following reliefs:
(i)permanent injunction restraining the defendant, their management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming under them or acting in concert with them or on their behalf or acting on their instructions from telecasting, broadcasting, publishing, disseminating or otherwise communicating to the public in any manner, any advertisement or any part thereof in any language or any other representation or in any manner or part thereof in any language to be telecast or broadcast or communicated to the public or published in any manner which directly or indirectly or in any manner, disparages and/or denigrates the plaintiff's NIMYLE branded goods and/or category of goods to which it belongs;
(ii)permanent injunction restraining the defendant, their management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming under them or acting in concert with them or on their behalf or acting on their instructions from using in relation to the defendant's goods in any manner by way of advertisement or any manner whatsoever, the words “NIMYLE” or any other mark identical and/or deceptively similar thereto that infringes Page 3/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 the plaintiff's registered trademark/label NIMYLE or from using any other depiction of the product NIMYLE or any trade dress or distinctive feature thereof;
(iii)an order directing the defendant to deliver up to the plaintiff for destruction, all master tapes, CDs, DVDs or any other copies/material containing the disparaging advertisements and for other reliefs.
4.In the said suit, the respondent filed an application in O.A.No.554 of 2021 to grant an interim injunction restraining the respondent from telecasting, broadcasting, publishing, disseminating or otherwise communicating to the public in any manner, any advertisement or any part thereof or any other advertisements of a similar nature in any language or any other representation or in any manner or part thereof or any other advertisement of a similar nature to be telecast or broadcast or communicated to the public or published in any manner which directly or indirectly or in any manner, disparages and/or denigrates the applicant's NIMYLE brand and/or goods bearing the NIMYLE trademark in any manner whatsoever, pending disposal of the suit.
Page 4/95https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 4.1.The respondent filed an application in O.A.No.555 of 2021 to grant an interim injunction restraining the respondent from using in relation to the defendant's goods in any manner by way of advertisement or any manner whatsoever, the words “NIMYLE” or any other mark identical and/or deceptively similar thereto that infringes the plaintiff's registered trademark/label NIMYLE or from using any other depiction of the product NIMYLE or any trade dress or distinctive feature thereof in any manner whatsoever pending disposal of the suit.
4.2.In the said suit, the respondent also filed another application in O.A.No.556 of 2021 to grant an interim injunction restraining the respondent from telecasting, broadcasting, publishing, disseminating or otherwise communicating to the public in any manner the impugned advertisement with NIMYLE HERBAL Floor cleaner or the trade mark NIMYLE or any part thereof or any other advertisements of a similar nature in any language or any other representation or in any other manner or part thereof or any other advertisement of a similar nature disparaging and/or denigrated the plaintiff, its trademarks and/or products to be telecast or Page 5/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 broadcast or communicated to the public or published in any manner which directly or indirectly or in any manner, disparages and/or denigrates the applicant's NIMYLE HERBAL floor cleaner and/or goods bearing the NIMYLE trademark in any manner whatsoever, pending disposal of the suit.
5.The brief case of the respondent/plaintiff is as follows:
(i)The respondent is the largest player in India in the herbal floor cleaner space. The appellant is the manufacturer and marketer of a chemical surface disinfectant, which is sold under the brand name/trademark “LIZOL”. In order to stall the growth of “NIMYLE” and to further its own interests in promoting the chemical surface cleaner, the appellant filed, as many as, four complaints before the Advertising Standards Council of India (in short “ASCI”), in which, both the respondent and the appellant are members. The ASCI held that all claims made in relation to “NIMYLE” were appropriately substantiated and the appellant failed in its attempt to derail NIMYLE's growth using the ASCI complaints. From 09.09.2021, the appellant released disparaging advertisement in several TV channels and Page 6/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 YouTube. The advertisement disparages “NIMYLE” and the category of herbal floor cleaners. On each day, when the advertisement is aired, NIMYLE is disparaged and the respondent suffers damage. The advertisement is centered on the claims that 1:250 ratio of LIZOL to water gives 99.9% germ protection and 99.9% Covid-19 protection. However, in order to get the same protection, “NIMYLE” has to be used at 1 : 5 ratio in water. The appellant advertised that the efficacy of herbal floor cleaner is very less and that 3/4th of 1 litre bottle (i.e.) approximately 800 ml has to be used for killing 99.9% germs and therefore, it is inferior to the appellant's product “LIZOL”, which needs 2-3 caps full for ½ bucket of water to kill 99.9% germs. It is further submitted that the bottles displayed in the racks contain the respondent's product to show that they are herbal products and inferior in efficacy.
(ii)According to the respondent, the appellant had compared two dissimilar goods, hence, the comparison is unfair. The claim that “LIZOL” gives 99.9% germ protection when mixed at ratio of 1 : 250 and 99.9% Covid-19 protection when mixed at 1 : 250, were not proved by reliable evidence. Similarly, the appellant have not proved that “NIMYLE” Page 7/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 provides protection only at a higher concentration of 1 : 5 and not at any lower concentration. The impugned advertisement claims that 1 : 250 ratio of LIZOL to water will give 99.9% germ protection and 99.9% Covid-19 protection. However, in order to get the same protection, “NIMYLE” has to be used at 1 : 5 ratio in water (i.e.) the quantity of “NIMYLE” to be used is 50 times as that of “LIZOL”. Further, the advertisement claims that “NIMYLE” will not kill 99.9% germs even if 2 – 3 caps full added to 4 litre of water. Not only the advertisement claims are ex facie disparaging, but the appellant's various statements and claims are mischievously misleading and false.
(iii)Since “NIMYLE” had proved efficacy against Covid-19 corona virus in the process of cleaning floors, a strong ratio of 1 : 5 was recommended. Since the World Health Organization (WHO) has clarified that the spread of Covid-19 corona virus is not through floor touch transmission and is air borne, NIMYLE's proven efficacy against the virus was not stated on the “NIMYLE” packs. Accordingly, the current packs of “NIMYLE” bear no Covid-19 related claim and recommends usage dilution of 1 : 25 ratio with water, thus reverting to the pre-Covid-19 position. In Page 8/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 these circumstances, the respondent/plaintiff filed the suit and also filed the applications in O.A.Nos.554 to 556 of 2021 for the prayers stated above.
6.The brief case of the appellant/defendant is as follows:
According to the appellant/defendant, it is the fundamental right to display comparative advertisement and statements found in the advertisement are true. The customers have the right to be informed about the products. Further, the appellant contended that telling truth to the public cannot be restrained by a judicial order.
7.The learned Single Judge, taking into consideration the case of both parties, allowed the applications in O.A.Nos.554 to 556 of 2021.
Challenging the same, the respondent in the said applications have filed the above appeals.
8.Heard Mr.Chander Lal, learned senior counsel for Mr.R.Saravana Kumar, learned counsel appearing on behalf of the appellant and Dr.Abishek Manu Singhvi, learned senior counsel, Mr.Jaideep Gupta, Page 9/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 learned senior counsel and Mr.C.Mani Shankar, learned senior counsel for Mr.Arun C.Mohan, learned counsel appearing on behalf of the respondent.
9.Since the issue involved in the above appeals is pertaining to the advertisement displayed in Television Channels and YouTube by the appellant, it would be appropriate to extract the story-board as follows:
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10.Mr.Chander Lal, learned senior counsel appearing for the appellant/defendant contended that the efficacy of herbal floor cleaner is very less and that ¾th of 1 litre bottle (i.e.) approximately 800 ml has to be used for killing 99.9% germs and further, it is inferior to the product of appellant's, viz.,“LIZOL”, which needs only 2-3 caps full of “LIZOL” for ½ a bucket of water, to kill 99.9% germs. Whereas, 800 ml of herbal floor cleaner is required for the same effect. Further, the learned senior counsel contended that the message conveyed in short is that the herbal floor cleaner, which is green in colour, will not kill 99.9% germs. To get the desired results, one has to add 800 ml of herbal floor cleaner in ½ a bucket of water (i.e.) around 4 litres of water. Further, the learned senior counsel submitted that the word “herbal” is visibly shown to the viewers by the demonstrator and the voice over says that the herbal product in the bottle will not kill 99.9% germs. If a trader compares his goods with the goods of a rival, without in any way advertising that the trademark is used in relation to his goods, there is prima facie no infringement. Where the requirement is to prove that statement to be untruthful, the onus must lie on the person who makes such an assertion.
Page 14/95https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 10.1.In support of his contentions, the learned senior counsel for the appellant/defendant relied upon the following judgments:
(i)(1999) 7 Supreme Court Cases 1 [Colgate Palmolive (India) Ltd.
Vs. Hindustan Level Ltd.], wherein the Hon'ble Supreme Court held as follows:
“...
24.We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the court hearing the application or petition for the grant of injunctions are as below:
(i) extent of damages being an adequate remedy;
(ii) protect the plaintiff's interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor;Page 15/95
https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021
(iii) the court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the other's;
(iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case — the relief being kept flexible;
(v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;
(vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.
...
32.In order, however, to assess the substance of the point in issue as raised by Mr Desai, a look at Section 36-A may be convenient at this juncture. Section 36-A defines “unfair trade practice” as a trade practice which for the purpose of promoting the sale, use or supply of any goods or for provision Page 16/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 of any services, adopts any unfair method or unfair or deceptive practice as mentioned in the section and thereby causes loss or injury to the consumer of such goods or services, whether by eliminating or restricting competition or otherwise and in this context specific reference may be made to specific sub-sections appended thereunder which are of some relevance and as such noted hereinbelow:
“36-A. (1)(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii)-(iv)***
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:Page 17/95
https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to be—
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix)* * *
(x) gives false or misleading facts disparaging the goods, services or trade of another person.”
33.It is in this context, however, that the observations of this Court in Lakhanpal case (Lakhanpal National Ltd. v. M.R.T.P. Commission [(1989) 3 SCC 251] ) are rather apposite. This Court in para 7 of the Report observed: (SCC pp. 255-56) “7. However, the question in controversy has to be answered by construing the relevant provisions of the Page 18/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Act. The definition of ‘unfair trade practice’ in Section 36-A mentioned above is not inclusive or flexible, but specific and limited in its contents. The object is to bring honesty and truth in the relationship between the manufacturer and the consumer. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man? Does it lead a reasonable person in the position of a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language. Similarly a statement, which may be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the Page 19/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 truth is? The position will have to be viewed with objectivity, in an impersonal manner. It is stated in Halsbury's Laws of England (4th Edn., paras 1044 and 1045) that a representation will be deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable representee. ‘Another way of stating the rule is to say that substantial falsity is, on the one hand, necessary, and, on the other, adequate, to establish a misrepresentation’ and ‘that where the entire representation is a faithful picture or transcript of the essential facts, no falsity is established, even though there may have been any number of inaccuracies in unimportant details. Conversely, if the general impression conveyed is false, the most punctilious and scrupulous accuracy in immaterial minutiae will not render the representation true’. Let us examine the relevant facts of this case in this background.” Similar is the finding of this Court (at SCC p. 490, para 9) that “for holding a trade practice to be an unfair trade practice, therefore, it must be found that it causes loss or injury to the consumer”. (emphasis supplied) (H.M.M. Page 20/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Ltd. v. Director General, Monopolies & Restrictive Trade Practices Commission [(1998) 6 SCC 485, 490] .)
34.In the instant matter there are no allegations in the complaint against the term “Suraksha chakra” nor even an allegation that the same is misleading or an unfair trade practice. The notice of enquiry also does not contain any reference to “Suraksha chakra” as unfair trade practice or there being any involvement or any falsity or that in any way the same tantamounts to a misleading information to the people at large. The allegations in the complaint filed by Hindustan Lever stand restricted or confined to Colgate's claim in respect of “germ fighting”, “bad breath” and “tooth decay”.
35.On the factual analyses as above, would we be justified in ascribing the grant of the order of injunction by the Commission that the same is in accordance with the known principles of law and the factors which ought to weigh with the court in the matter of grant of injunction as indicated above — the answer obviously cannot possibly be in the affirmative. The rigours of American Cyanamid [(1975) 1 All ER 504 : 1975 AC 396 (HL)] and subsequent modulations thereof by the other English decisions along with the observations of Laddie, J. (supra) do not in any event run counter to the observations as above. The decision of this Court in Antox India [1990 Supp SCC 727] cannot but lend concurrence to the view expressed Page 21/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 above to the effect that the object of interlocutory injunction is to protect the plaintiff against the injury by reason of violation of his right and relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before the uncertainty could be resolved — three specific features available in the complaint have not in any way been disturbed by reason of lack of evidence but an incidental issue wholly dependent upon those three specific features has been taken up for consideration and an order of injunction granted. This is where the Commission is in error. The vindication of public right or public injury as contended by Mr Salve does not, however, make a dent in the contextual facts, since the case with which a party comes to court ought to be considered in all fairness, in its proper perspective but unfortunately there is a total lack of the same in the instant matter.
...
40. Let us now, however, consider the observations of the Commission itself which runs to this effect:
“… falsity or otherwise of these claims can be established conclusively at the stage of trial when evidence will be adduced by the informant/complainant by examining experts and their cross-examination by the respondent. Due weight and consideration has to be Page 22/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 given to the opinions of experts while appreciating and evaluating evidence in order to arrive at a just conclusion and this can be done at the final stage of the enquiry.” In our view the observation or expression of opinion as above, as a matter of fact, runs counter to an order of injunction as has been granted by the Commission. Obviously the Commission was persuaded to pass the order of injunction pertaining to “Suraksha chakra” as and by way of an interlocutory order by reason of the factum of the injunction as granted by the Federal Trade Commission in the United States of America and we have already noticed earlier that in the advertisement under controversy no invisible shield to protect the tooth is available. It is the complainant's definite case that the advertisement pertaining to the foaming action, stopping bad breath and tooth decay cannot but be said to be a misrepresentation of facts and as such ought not to be permitted to be continued with such an advertisement and it is in this perspective as a matter of fact the complainant records in the complaint:
“The complainant carried out in their Research Centre well-accepted test to study the anti-bacterial efficacy, if any, of CDC. The executive summary of the test shows that:Page 23/95
https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Contact germ kill test [Ref. — Spangler S.K. Jacobs, M.R., and Applebaum, P.C., J of Antimicro Chemotherapy 39 (suppl. B) p. 23, 1997] ‘The test data shows that Colgate Dental Cream has no significant impact on the survival rate of oral bacteria during the contact of 60 seconds which is more than the average brushing time of consumers. The same test done for toothpaste with standard anti-bacterial agent shows a significant drop in the survival rate of these bacteria under similar conditions.’ The complainant craves leave to refer to and rely upon the detailed report, enclosed as Annexure 6.
The analytical report clearly establishes that Colgate Dental Cream has no proven anti-bacterial ingredient nor does it have any significant anti-bacterial activity or effect. The claim made in the advertising are not proved and/or substantiated scientifically/technically and are thus false and misleading.
In India the ability of a toothpaste to protect against harmful oral germs is a very compelling consumer benefit. A national survey of consumers done by the complainant/ informant in 1994 showed that 55% of all consumers see ‘ability to fight germs’ as the most important attribute of a Page 24/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 toothpaste. In fact, germ protection is a strong source of competitive advantage in the market. As such, any claim in this area, must be backed by proven efficacy of the product to combat the threat of harmful oral bacteria.
The respondent is thus making advertising claims on Colgate Dental Cream for promoting sale of Colgate Dental Cream that are misleading and false, to gain unfair advantage in the marketplace to the extent of monopolising the toothpaste market, beyond the intrinsic quality of the product. The respondent has also been making the claim of ‘fights tooth decay’ for promoting sale of Colgate Dental Cream. This claim again is false and absolutely misleading. It is a scientifically established fact that the well-known agent that can fight ‘tooth decay’ is fluoride. More than 100 long-term clinicals have been carried out to show in unequivocal terms that fluoride is capable of reducing tooth decay. The complainant encloses a summary of literature on tooth decay and the role of fluoride in reducing the same in support of the fact that presence of ‘fluoride’ can help in reducing tooth decay [Annexure 8 (Colly)].
The complainant/informant submits that Colgate Dental Cream does not have soluble fluoride. The fact that Colgate Dental Cream does not have soluble fluoride can be ascertained Page 25/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 from the pack of Colgate Dental Cream (copy CDC pack photocopy is enclosed as Annexure 9).
The complainant further submits that even the claim of ‘stops bad breath’ is false and misleading, as bad breath is the result of action of oral bacteria that act on proteins present in saliva or food particles giving volatile sulphur compounds (VSC) like hydrogen sulphide and indoles. These compounds are volatile and are currently considered as root cause of bad breath. Process of generation of VSCs is well reported [Steenberghe Van D and Rosenberg M (ed.), Lueven University Press, 1995].
The respondent has also published a report (Niles H.P., J dent. Res. 73 sp. issue, Abst. No. 1579) demonstrating that reduction in VSCc can be achieved by using triclosan in the toothpaste. A placebo (without triclosan) showed no effect over and above the negative control. Demonstration of reduction in VSC is pre-requisite for making claims on bad breath. It is, therefore, clear that Colgate Dental Cream which does not contain triclosan, cannot suppress the bad breath leave alone ‘stops’ it.” ...
43.The submission of Mr Salve at the first blush is rather attractive that at this stage we are not really concerned with the factum of establishment of any truth or falsity but merely a Page 26/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 prima facie case or an arguable case resulting in establishment of a prima facie case and in that perspective the issue therefore emerges as to whether such a prima facie case has been made out or not — we are, however, afraid that the answer cannot but be in the negative. The Federal Trade Commission was confronted with an invisible shield which was protecting the tooth from a coconut, tennis ball and a piece of stone and it is on this factual backdrop that FTC came to a conclusion that withstanding of the pressure of the coconut or resistance by an invisible shield by reason of the user of the toothpaste would not arise. The situation in the present context is however totally dissimilar. No material object is bouncing back after hitting the tooth by reason of “Suraksha chakra”. “Suraksha chakra” comes up by reason of the factum of fighting of germs, tooth decay and bad breath — it has not been proved or even enquired as to whether Colgate Dental Cream can avoid decay or germs or whether it does or does not stop bad breath — it is only against these three items that there is “Suraksha” by means of a “chakra”. There is no claim that the toothpaste would act as a shield against any hard substance which may or may not tantamount to misleading the common unwary purchaser in the Clapham omnibus. This “Suraksha chakra” refers to two basic elements, namely “tooth decay” and “germ fighting” coupled with stopping of bad breath. It does not as a Page 27/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 matter of fact require any special knowledge to appreciate or understand as to the effect of the “Suraksha chakra”. No evidence has been led as to whether there would be avoidance of “tooth decay” or “germ fighting” by reason of the user of the toothpaste and without rendering evidence on these two basic elements in our view, the question of there being a prima facie case for establishment for the grant of interlocutory injunction does not and cannot arise. The Commission, as appears, was totally obsessed with FTC's finding in regard to the invisible shield without however any factual support in the matter under consideration. The Commission it seems in fact misapplied and misread the observations of the Federal Trade Commission since there is no factual similarity between the two. A prima facie case or at least an arguable case does not and cannot possibly suggest an order of injunction without any factual support. There ought to be some such support on facts without which there would not be any justification for grant of an interim order.”
(ii)2018 SCC Online Mad 1126 [Gillette India Limited, The Manor, 3-B, 3rd Floor, 31/14 A, College Road, Thousand Lights, Chennai – 600 006 represented by its Authorized Signatory, Siddhant Sharma Vs. Page 28/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Reckitt Benckiser (India) Private Limited 227, Okhla Industrial Estate, Phase-III, Okhla, New Delhi – 110 020, represented by its Authorized Signatory, Mr.Rajesh Kumar Jha], wherein a Division Bench of this Court held as follows:
“...
75.In Pepsi Co Inc. v. Hindustan Coca Cola Ltd., supra, the Delhi High Court held:
“18. Admittedly puffing one's product by comparing others' goods and saying his goods are better is not an actionable claim but when puffing or poking fun amount to denigrate the goods of the competitor, it is actionable. Calcutta High Court in the case of Reckitt & Colman of India Ltd. v. M.P. Ramchandran, 1999 PTC (19) 741 while dealing with the question of disparagement, laid down the principles which the court should look into while granting the injunction. One of the principles is that the Court has to look at whether the advertisement or the commercial, as the case may be, merely puff the product of the advertiser or in the garb of doing so directly or indirectly contends that the product of the other trader is inferior. In the present case in the garb of puffing up its product i.e. “Thums Up” prima Page 29/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 facie respondents have tried to depict the product of the appellant as inferior.
19.On the other hand, contentions of the counsel for the respondents that merely calling PEPSI COLA a sweet drink or “bacchon wala hein” by itself does not in any way indicate that respondent hinted appellant's product as inferior. The products which are liked by children do not become inferior or harmful nor by saying so respondents denigrated or disparaged the product of the appellant.
20.There is no doubt that comparison is permissible so long it does not undervalue the product of the rival. In the commercials shown by respondent and as quoted above children are made to understand that young people don't drink sweet Cola. It is not an indication of superiority in technology of respondent's drink but showing inferior quality of the appellant's product as if “PEPSI COLA” is not liked by the young people or that it is meant only for children, therefore, the choice of the Boy for Pepsi is said to be a wrong choice. By projecting so the respondent through the lead actor conveys in a sophisticated way that the product of the appellant is rubbish.” ...
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93.We are in full agreement with the view of the learned Single Bench in Reckitt & Colman of India v. M.P. Ramachandran, supra, that:
“(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 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.” ...Page 31/95
https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021
97.Whether an advertisement is disparaging or not would depend on several factors, for which each advertisement would have to be judged on its own merits, on consideration of the overall impact of the picture that is portrayed, the language used, the histrionics, the gesticulations, the movements, acrobatics, catch phrases, hilarity or other catchy screen shots. While humour, hilarity or even ridiculing to highlight the advantages of one's own product may be permissible, ridiculing services and products of another would amount to disparagement.
98.To decide whether an advertisement is disparaging, the Court has to consider (i) the intent of the commercial advertisement; (ii) the message sought to be conveyed; and (iii) the mode and manner of conveying the message. Condemning the goods and services of a competitor or ridiculing the same or showing the same as substandard would amount to disparagement.
99.Of course, as stated above, mere puffing up of one's products or services in comparison to those of others would not constitute disparagement. It may be permissible for an advertiser to compare the technology or the formula of the products of others in an attempt to impress upon viewers the superiority of the goods and articles advertised over those of Page 32/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 others. In the process, an advertiser may even brand the technology and/or formula applied by others as obsolete compared to the more modern technology or formula of the advertiser, but without denigrating or disparaging the products of others.
...
102.However, different consumers viewing the same comparative advertisement may come to different conclusions. To constitute disparagement of a product, the message conveyed should be defamatory or disparaging. As argued by Mr. Raman, truth may be a legitimate defence to a defamatory, derogatory or disparaging message. However, if an advertisement apparently conveys a message which appears to be disparaging, the justification of truth would necessarily have to be decided at the trial.
...
105. If in a suit for disparagement in relation to an advertisement a strong prima facie case of disparagement is made out, injunction would necessarily have to be granted, for pecuniary compensation could never compensate defamation and/or disparagement. By grant of injunction, the opposite party would only be restrained from disparaging the applicant for injunction till a final decision was taken by the Court. The prejudice to the applicant for injunction by continuous Page 33/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 exhibition of disparaging advertisements would be irreparable, and far greater than the prejudice to the opposite party, if the applicant ultimately succeeded.
...
108.In a disparagement suit, the Court would have to examine whether the object of the advertisement is to highlight the benefits of the products of the advertiser in comparison to those of others or to denigrate the products of others, which would amount to defamation.”
(iii)2006-2-L.W. 377 [1.R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal and another Vs. 1.J.Jayalalitha and another], wherein this Court held as follows:
“...”
25.The next is the decision in Hurakus v. Baltic Mercantile and Shipping Exchange Ltd. [(1982) 2 All E.R. 701], again Lord Denning observed:
“This cases raises a matter of principle which must be observed. This Court never grants an injunction in respect of libel when it is said by the defendant that the words are true and that he is going to justify them. So also, when an occasion is protected by qualified Page 34/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 privilege, this Court never grants an injunction to restrain a slander or libel, to prevent a person from exercising that privilege, unless it is shown that what the defendant proposes to say is known by him to be untrue so that it is clearly malicious. So long as he proposes to say that he honestly believes to be true, no injunction should be granted against him. That was made clear in Quartz Hill Consolidated Gold Mining Co. v. Beal, (1882) 20 Ch 1) 501.”
26.The same view has been adopted by the Division Bench of the Bombay High Court in Appeal No. 464 of 1989 from Notice of Motion No. 48 of 1989 in Suit No. 3907 of 1988 in the case of Dr. Yashwant Trivedi v. Indian Express Newspapers (Bombay) Pvt. Ltd. decided on 29.6.1989 and the ratio in the case of Harakas v. Baltic Mercantile and Shipping Exchange Ltd. (supra) and in particular, the portion quoted above has been approved. The Division Bench also observed:
“The crux of the matter is that when in a libel action at the interlocutory stage the defendant raises plea of justification and, as in this case, mentions evidence by which he might substantiate his case, the Court is unlikely to grant an interlocutory injunction in favour of the plaintiff to restrain further publication of the alleged libel.” Page 35/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 In the said judgment, the passage appearing in the Treatise on Libel and Slander by Gatley Eighth Edition, has been cited with approval, which is also quoted herein-below:
“1574. Justification: When the defendant swears that he will be able to justify the words - unless the Court is satisfied that he will not be able to do so. The validity of a justification, if pleaded, is eminently a matter to be determined by a verdict of a jury. When once a defendant says that he is going to justify the words complained of, there is an end of the case so far as an interim injunction is concerned, although in a proper case it may be that the Court will intervene on the ground of breach of confidence”
27.Finally we may refer to the decision of the Supreme Court in S. Rangurajan v. P. Jagajivan Ram, (1989) 2 SCC 574 = 1989 2 L.W. 162 = 1989 Writ L.R. 170 where the Court held that the freedom of speech and expression should not be suppressed unless the situation created by allowing the freedom are pressing and the community interest is endangered, and it is not simply a case of balancing of two interests as if they are of equal weight. In this connection, the observations in paragraphs 41 to 45 of the said judgment are relevant and accordingly are Page 36/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 reproduced below: — “41.“When men differ in opinion, both sides ought equally to have the advantage of being heard by the public.” (Benjamin Franklin). If one is allowed to say that policy of the government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support the governmental scheme, the other could as well say, that he will not support it. The different views are allowed to be expressed by proponents and opponent not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.
42.Alexander Meiklejohn perhaps the foremost American philosopher of freedom of expression, in his wise little study neatly explains:
“When men govern themselves, it is they — and no one else — who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones unfair as well as fair, dangerous as well as safe, un American as well… American. … If then on any occasion in the United States it is allowable, in that situation, to say that the Constitution is a good document it is equally allowable, in that situation, to say that the Constitution is Page 37/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 a bad document. If a public building may be used in which to say, in time of war, that the war is justified, then the same building may be used in which to say that it is not justified. If it be publicly argued that conscription for armed service is moral and necessary, it may likewise be publicly argued that it is immoral and unnecessary. If it may be said that American political institutions are superior to those of England or Russia or Germany, it may with equal freedom, be said that those of England or Russia or Germany are superior to ours. These conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant…. To be afraid of ideas, any idea, is to be unfit for self-government.” He argued, if we may say so correctly, that the guarantees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the government, the people's legislative and executive agents.
43. Brandies, J., in Whitney v. California propounded probably the most attractive free speech theory:
“… that the greatest menace to freedom is an inert people; that public discussion is a political duty;… It is Page 38/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”
44.What Archibald Cox said in his article though on “First Amendment” is equally relevant here:
“Some propositions seem true or false beyond rational debate. Some false and harmful, political and religious doctrine gain wide public acceptance. Adolf Hitler's brutal theory of a “master race”: is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same licence to all others who have, but fear to lose, power. The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people.Page 39/95
https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021
45.The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight.
Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a power keg”.
28.The right to publish and the freedom of press as enshrined in Article 19(1)(a) of the Constitution of India are sacrosanct. The only parameters of restriction are provided in Article 19(2) of the Constitution. As observed by Mudholkar, J. in Sakal Papers (P) Ltd. v. Union of India (AIR 1962 SC 305) Page 40/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 the courts must be ever vigilant in guarding perhaps this most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. The interim order granted by the learned single Judge is a blanket injunction. The order virtually amounts to a gag order or censorship of press. Such censorship cannot be countenanced in the scheme of our constitutional framework. Even assuming that the articles published by the appellants amount to character assassination of the respondents, there is no justification for granting a blanket injunction restraining the appellants from publishing any articles, in future. It would not be appropriate for us to examine the articles at this stage on the touchstone of defamation, but what we do observe is that they are not of such a nature warranting a restraint order, especially when the appellants are willing to face the consequences in a trial in case the same are held to be defamatory and the plea of the appellants of truth is yet to be analysed by the Court.” Page 41/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021
(iv)2011 SCC Online Del 466 : (2011) 178 DLT 705 [Tata Sons Limited Vs. Greenpeace International & Anr.] wherein the Delhi High Court held as follows:
“...
10. The plaintiff submits the impugned game and the defendant's use of the TATA mark and T device within a circle, amounts to defamation, with the ulterior motive of damaging its reputation. This is also motivated at prejudicing the plaintiff's immense goodwill, as well as the reputation of Mr. Ratan Tata, the Chairman of Tata Steel. The plaintiff also alleges that this is aimed (by the defendants) to create a false impression with members of the general public, about its activities. It is also urged, besides that the defendants have demonstrated their dishonesty by putting forth wrong facts and information to the public at large with the ulterior motive of maligning and defaming the TATA group.
....
16.The plaintiff further argued that the mode of publishing the defamation in this case is also objectionable as anything posted on the internet has propensity to cause greater and lasting damage. They rely upon the judgment of this Court in Yahoo Page 42/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Inc! v. Akash Arora, 1999 PTC 201, the Ontario Court of Appeal's judgment in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON C.A.), as well as the decision reported as Dowjones and Company Inc v. Jameel, 2005 EWCA (Civ) 75. In this context, it is submitted that unlike publication in the print media which can cause the same intensity of the damage to the individual, the reach of the internet and its widespread accessibility means that any defamatory or libelous material posted on it, causes greater damage and harm to the injury of the subject. Therefore the Courts have to view this aspect from a wider perspective while considering the balance of convenience and the likelihood of irreparable prejudice to the plaintiff who is the subject of defamation.
...
23.Greenpeace India submits that the reference to the word “Demons” is only with a view to emphasize and drive home the point that development through the project in question, tantamounts to a “demon” which threatens the existence and survival of the Olive Ridley. The juxtaposition of the word “demons” with TATA and with reference to the project, is merely hyperbole. The word “demons” have been used as an overtly emphatic expression primarily with the purpose of making a strong impact impression without intending it to be taken literally. When the word and indeed the entire game is Page 43/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 viewed in this light, it can hardly be said to be defamatory. The game succinctly and creatively enables the registering of protest and concerns in relation to the future of the Olive Ridley turtles in the region and the juxtaposition of the word “Demons” with TATA and indeed with reference to the projects itself, as a mere hyperbole and must be seen and viewed in the context of fair criticism and comment which is guaranteed as freedom of speech and expression under the Constitution of India. Section 29(4) of the Trade Marks Act, 1999, itself is so worded so as to enable the use of a trademark without amounting to dilution it is with due cause and in an entirely non-commercial context. It is submitted that the plaintiff and its group companies, having undertaken to embark on a sensitive and controversial project, having myriad environmental and other implications, ought not to be permitted to abuse the process of law to scuttle, suppress and muzzle fair comment and criticism, which is not only imminent but necessary and inevitable. It is submitted that the larger objective of the Game being to arouse and mobilize public opinion and awareness, against a project that it honestly perceived as an environmental disaster in the making any restraining/restriction on the game would amount to an unreasonable fetter and restriction on the fundamental right of freedom of speech and expression guaranteed under the Constitution of India. It is submitted that Greenpeace India is Page 44/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 acting without malice. It is urged that Greenpeace India sees the Internet as an extremely powerful, inexpensive and speedy mechanism of mobilizing public opinion on a countrywide and global scale. It is submitted that the freedom of speech and expression guaranteed under the Constitution of India is without any restrictions circumscribed by limitations of medium (like the internet), provided the expression is otherwise legal. The fundamental rights and freedoms guaranteed under the Constitution of India, override and render irrelevant the rights and immunities that may be available to an entity or person under any other law, provided such expression could be justified as legal in the context of circumstances they were made. It is averred that the impugned game and the text attacked as libelous or objectionable are honest and justified criticism. Every citizen has a right to express his honest opinion about the correctness and consequences of a corporate entity engaged in matters of public interest. The defendant's criticism in the present matter is honest, with justifiable reasons on a matter of public importance and there is nothing in their conduct which demands restriction on it.
...
25. Next, Greenpeace India relied on Greene v.
Associated Newspapers Limited, 2005 (1) All.ER 30, where it was held that if it is a known fact that the truth of defamation Page 45/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 claims can only be tested at trial level then it would be appropriate for the Court not to award an interim injunction to the plaintiffs, as the other course would otherwise put an unreasonable burden on the concept of free speech. It was urged in addition, that the rule of caution enunciated in Bonnard (supra) has been approved and followed, by a Division Bench of this Court, in Khushwant Singh v. Maneka Gandhi, AIR 2002 Del 58. Learned counsel urged that this Court should also be mindful of the fact that the present suit, is an instance of a SLAPP SUIT, the sole objective of which is the plaintiff's desire to muffle or stifle criticisms about the ecological damage threatened by the Dhamra Port Project. It was argued that though the Port is a joint venture, the real beneficiary after it comes up, is the Tata group, as it (the port) affords a proximate sailing point from which their products, such as steel, etc. can be shipped.
...
30.The English common law precedent on awarding interim injunctions in cases of defamation is set out by the case of Bonnard (supra). In Bonnard it was decided that an interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at trial level.
Page 46/95https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 The Court's observations, widely applied in subsequent judgments are as follows:
“…[T]he subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions… In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.” Page 47/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 ...
37.From the above reasoning it follows that the Court will invariably not grant an interim injunction to restrain the publication of defamatory material as it would be unreasonable to fetter the freedom of speech before the full trial takes place, where each of the parties can argue in detail with the help of additional evidence. Similarly in this matter, it is incumbent upon this Court to decide whether it would be reasonable to fetter the reasonable criticism, comment, and parody directed at the plaintiff, which to a large extent is protected by the Constitutional guarantee to free speech, to all the citizens of India. This point of view was also strengthened by a recent challenge to the old common law rule of Bonnard in the case of Greene v. Associated Newspapers Limited, 2005 (1) All.ER. 30, where it was decided that if it is a known fact that the true validity of the defamation claims will only be tested at trial level then it would only be appropriate for the Court not to award an interim injunction to the plaintiffs as it would otherwise put an unreasonable burden on the concept of free speech. After an elaborate survey of the law on the issue, it was held that:
“This survey of the caselaw shows that in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. This is partly due to the importance the court attaches to Page 48/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 freedom of speech. It is partly because a judge must not usurp the constitutional function of the jury unless he is satisfied that there is no case to go to a jury. The rule is also partly founded on the pragmatic grounds that until there has been disclosure of documents and cross-examination at the trial a court cannot safely proceed on the basis that what the defendants wish to say is not true. And if it is or might be true the court has no business to stop them saying it. This is another way of putting the point made by Sir John Donaldson MR in Khashoggi, to the effect that a court cannot know whether the plaintiff has a right to his/her reputation until the trial process has shown where the truth lies. And if the defence fails, the defendants will have to pay damages (which in an appropriate case may includes aggravated and/or exemplary damages as well)”.”
(v)2015(4) CHN (CAL) 19 : Manu/WB/0584/2015 [Reckitt Benckiser Health Care (India) Pvt. Vs. Emami Ltd. and ors.], wherein the Division Bench of the Calcutta High Court held as follows:
“...
32.Keeping in mind the aforesaid principles laid down by the Hon'ble Supreme Court, as well as various High Courts including our High Court we will have to examine as to Page 49/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 whether the comparison which was made by the defendant No. 1 between its own product “Moov” and the plaintiff's product which is manufactured and marketed under the trademark under the trademark of “ZANDU BALM”/\“ZANDU” is a fair and truthful comparison or not. The defendant in its affidavit in paragraph 16 thereof depicted a comparative chart regarding the ingredients used in the defendant's product and the ingredients used in the plaintiff's product to justify that such comparison was fair as it was made on truthful basis.
Paragraph 16 of the said affidavit is thus, set out hereunder. Paragraph 16 “Furthermore the advertisement of the defendant contains truthful representation of facts. It is a fact that the defendants “MOOV” has twice the number of active ingredients when compare to other balms in particular the plaintiff's balm. The comparison of the active ingredients in to products is shown hereinbelow.
Plaintiff's product Defendant No. 1's product
Mentha Ssp-Satva Mentha Viridis
Gaultheria Fragrantissima OL Gaultheria Fragrantissima OL Pinus Roxburghii Eucalyptus Globulus Page 50/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 On account of the above, the defendant claimed that the impugned advertisement is truthful and this is protected by Article 19(1)(a) of the Constitution of India.
33.We have mentioned above that though in the advertisement it is mentioned that the defendant's product contains two times more the number of active ingredients versus leading balm as per Nielsen o2, 2014 and a symbol is shown onscreen with “2 ×” in the middle and “more active” on top and “ingredients” in the bottom, but in the voiceover the number of active ingredients was not uttered while airing the said advertisement. From the Video of the commercial display we find that the husband arrived at the conclusion that “MOOV” is better than the plaintiff's product “ZANDU BALM”/“ZANDU” as it contains two times more active ingredients than the plaintiff's product. It is thus clear that the said conclusion was drawn by the husband as more active ingredients were used in the product of the defendant No. 1 than that of product of the plaintiff. It is not a case of the defendant that simply because some additional ingredients are used in the defendant's product, the product of the defendant No. 1 is more effective and active than the plaintiff's product in giving quick relief to pain. On the contrary, it is the definite case of the defendant that the additional ingredients which are used in the defendant's product are “active”. We use the Page 51/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 expression “active” in bold letter to lay emphasise on it. The expression “active” carries some meaning which we cannot overlook. In our understanding, “active” means effective ingredients which contribute largely in reducing pain i.e., backache, quickly. Since the defendant claims that the additional ingredients are effective, it is for the defendant to establish that those additional ingredients are really effective enough to reduce pain quickly or alternatively since those ingredients are not used in the plaintiff's product, the plaintiff's product is comparatively less effective than the defendants product. No expert opinion has been submitted by the defendant to substantiate its claim that the two additional ingredients which are used in the product of the defendant No. 1 are active ingredients which really contribute in reducing the pain faster than the plaintiff's product. In the absence of the expert opinion, it is not possible for the Court to come to the ultimate conclusion as to the effectiveness of those two additional ingredients which are used in the product of the defendant No. 1. But considering the nature of those two additional ingredients which are tarpene oil and eucalyptus oil we are of the prima facie view that those are not active ingredients which may contribute to reducing pain and backache quickly. When the defendant No. 1 states that comparison which is made while airing the advertisement with Page 52/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 the plaintiff's product is fair and truthful, it was the duty of the defendant No. 1 to substantiate such contention by submission of expert's opinion, which the defendant has failed do.”
(iv)An un-reported judgment of this Court dated 04.09.2008 made in A.No.146 of 2008, O.A.No.1373 of 2007 and O.A.No.1374 fo 2007 in C.S.No.1128 of 2007 and A.No.147 of 2008 and O.A.No.1376 of 2007 in C.S.No.1131 of 2007 [M/s.Hindustan Unilever Limited, No.101, Santhome High Road, (Entrance from South Canal Bank Road), Chennai – 600 028 Vs. 1.Reckitt Benckiser (India) Limited 227, Okhla Industrial Estate, Phase III, Okla, New Delhi – 110 020 represented by its Managing Director Chander M.Sethi and another], wherein this Court held as follows:
“...
56.The Constitutional status of a Commercial Advertisement was considered by the Supreme Court in Hamdard Dawakhana Vs. Union of India {AIR 1960 SC 554}.
It was held therein that “an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed”. The Constitution Bench of the Apex Court held in that case that when an advertisement Page 53/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 “takes the form of a Commercial Advertisement which has an element of trade or commerce, it no longer falls within the concept of freedom of speech, for the object is not propagation of ideas – social, political or economic or furtherance of literature or human thought; but the commendation of the efficacy, value and importance of the product which it seeks to promote.” The Supreme Court went on to hold in the said decision that the right to publish and distribute commercial advertisements, cannot be said to be a part of freedom of speech guaranteed by the Constitution.
57.However, in the next decision Sakal Papers (P) Ltd Vs. Union of India {AIR 1962 SC 305}, the Supreme Court held that an enactment which empowered the Government to regulate the prices of newspapers and to regulate the allocation of space for advertisement matter, placed restrains on the freedom of press to circulate. The Supreme Court also held in the said decision that the curtailment of the advertisements would bring down the circulation of the newspaper and as such, would offend Article 19(1)(a) of the Constitution. The argument that the object of the enactment in regulating the space for advertisements is to prevent unfair competition, was repelled by the Court on the ground that it had a bearing on the circulation of a newspaper and hence there would be a direct interference with the freedom of speech and expression Page 54/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 guaranteed under Article 19(1)(a). The same view was also reflected in Bennett Coleman and Co. Vs. Union of India {1972 (2) SCC 788}.
...
59.The issue again cropped up when the Mahanagar Telephone Nigam Ltd. sought to injunct Tata Press Ltd from printing and publishing the list of subscribers on the ground that they alone had exclusive right to do so. When the matter went up to the Supreme Court, the Supreme Court held in Tata Press Ltd -vs- Mahanagar Telephone Nigam Ltd {1995 (5) SCC 139} that “publication of advertisements is a free commercial speech” and hence protected under Article 19(1)(a) of the Constitution. Some portions of the said decision are of relevance for the case on hand and hence they are extracted hereunder:
"23. Advertising as a "commercial speech" has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the Page 55/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech". In relation to the publication and circulation of newspapers, this Court in Indian Express Newspaper case {(1985) 1 SCC 641: 1985 SCC (Tax) 121: (1985) 2 SCR 287}, Sakal Paper case {AIR 1962 SC 305 : (1962) 3 SCR 842} and Bennett Coleman case {(1972) 2 SCC 788 : (1973) 2 SCR 757} has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation."
"25. We, therefore, hold that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution."
While adverting to the law in United States on the subject, the Supreme Court observed as follows:-
"15. After the decision in Virginia Board case {425 US 748 : 48 L Ed 2d 346 (1976)}, it is almost settled law in the United States that Page 56/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 "commercial speech" is entitled to the First Amendment protection. The Supreme Court has, however, made it clear that Government was completely free to recall "commercial speech"
which is false, misleading, unfair, deceptive and which proposes illegal transactions. A political or social speech and other public-affairs-oriented discussions are entitled to full First Amendment protection whereas a "commercial speech" may be restricted more easily whenever the Government can show substantial justification for doing so." In this Tata Press case, the Supreme Court went on to hold that "the protection of Article 19(1)(a) was available to the speaker as well as to the recipient of the speech" since "the economic fulfilment of a citizen has to be guided by the information disseminated through the advertisements"
60. The right to know was interpreted by the Supreme court as "a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Artilce 21 of the Constitution" in Reliance Petrochemicals Ltd., vs. Proprietors of Indian Express Newspapers Bombay (P) Ltd {1988(4) SCC 592 para 34}.
Page 57/95https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Even with regard to telecasting of events such as cricket, football and hockey etc., the Supreme Court held in Secretary, Ministry of Information and Broadcasting , Government of India Vs. The Cricket Association of Bengal {(1995) 2 SCC 161} that "the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained."
The above view was quoted with approval in Peoples Union for Civil Liberties (PUCL) Vs. Union of India {AIR 2003 SC 2363}, where the Supreme Court lamented that disinformation, misinformation and non-information, all equally create an uniformed citizenry which would finally make democracy a mobocracy and farce.
61. Even in U.K., the concern to protect free speech is reflected in the approach to interim injunctions in claims of malicious falsehood. (Microdata Vs. Rivendale Ltd {1991 FSR 681} and Macmillan Magazines Ltd Vs. RCN Publishing Co. Ltd {(1998) FSR 9}. In Bestobell Paints Ltd Vs. Bigg {(1975) FSR 421}, the defendant alleged that the plaintiff's paint was of poor quality, to put pressure on them to settle a claim arising from its purchase and use. Oliver J., while refusing to grant an Page 58/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 injunction, held as follows:-
"An interlocutory restraint in any case that is not obvious would operate as an unjust fetter on the right of free speech and the defendant's liberty (if he is right) to speak the truth"
"In the interests of freedom of speech, the Courts will not restrain the publication of a defamatory statement, whether a trade libel or a personal one, where the defendant says he is going to justify it at the trial of the action, except where the statement is obviously untruthful and libellous."
The above rule summarised in Bestobell relating to prior restraint against malicious falsehood was quoted with approval, in Boehringer Ingelheim Limited Vs. Vetplus Ltd, 2007 EWCA Civ 583, by a Three Member Bench of the Court of Appeal. However a note of caution was also added therein that when issues of infringement and passing off are involved, in comparative advertising, the question may not be one of pure free speech.
Even Article 10 of the European Convention on Page 59/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Human Rights protecting freedom of expression includes the protection of information of a commercial nature. Section 12 of the Human Rights Act, 1998, also laid emphasis on the right to freedom of expression.
62.Thus, on the one hand, advertisements being free commercial speech, enjoy a degree of protection. On the other hand, the right of the consumers to know and receive information is also protected. Therefore, both rights have to be matched and balanced.
...
65.The advent of the Consumer Protection Act, 1986, signalled the arrival of a new era. The Statement of Objects and Reasons of the said Act recognised 2 significant rights for the consumers. They are-
(1) the right to be informed about the quantity, potency, purity, standard and price of goods to protect consumers against unfair trade practices and (2) the right to consumer education.
These rights would become meaningless, if free commercial speech is clipped. The law as it developed from the decision of the Calcutta High Court in Reckitt Colman vs. M.P.Ramachandran upto Godrej Sara Lee case(Delhi High Court), on the basis of English precedents, recognises the right Page 60/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 of producers to puff their own products even with untrue claims, but without denigrating or slandering each other's product. But the recognition of this right of the producers, would be to de-recognise the rights of the consumers guaranteed under the Consumer Protection Act,1986. To permit 2 rival traders to indulge in puffery, without denigrating each other's product, would benefit both of them, but would leave the consumer helpless. If on the other hand, the falsity of the claim of a trader about the quality and utility value of his product, is exposed by his rival, the consumer stands to benefit, by the knowledge derived out of such exposure. After all, in a free market economy, the products will find their place, as water would finds its level, provided the consumers are well informed. Consumer education, in a country with limited resources and a low literacy level, is possible only by allowing a free play for the trade rivals in the advertising arena, so that each exposes the other and the consumer thereby derives a fringe benefit. Therefore, it is only on the touchstone of public interest that such advertisements are to be tested. This is why the Supreme court held in Tata Press case that "Public at large is benefited by the information made available through the advertisement." As a matter of fact the very basis of the law relating to Trade Marks is also the protection of public interest only, since the courts Page 61/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 think of an unweary purchaser, who may buy a spurious product on the mistaken impression that it was brand 'x'. The same logic should form the basis for an action in respect of disparaging advertisements also.
66. In fine, the following principles emerge namely---
(a) Publication of advertisements being free commercial speech, is protected by Article 19(1) (a) of the Constitution, as per the dictum of the Apex Court in Tata Press case.
(b) There are a few restrictions on the aforesaid right, which would satisfy the test of reasonableness under Article 19(2). These restrictions could be traced to the definition of the term "unfair trade practice" in section 36 A of the Monopolies and Restrictive Trade Practices Act, 1969 and section 2(1)(r) of the Consumer Protection Act, 1986.
(c) Therefore, only if a case of disparaging advertisement falls within the definition of the term "unfair trade practice", an action may lie. It would lie before a Consumer Forum, at the instance of a consumer or a group of consumers or a voluntary consumer association or even the Central or the State Government (see the definition of the word "complainant" under section 2(1)(b) of the Consumer Protection Act). It may even lie before the MRTP Commission. (or the Competition Commission after it is constituted).
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(d) An action may lie against such an advertisement before a civil court both at the instance of a manufacturer or marketer and at the instance of a consumer (since section 3 makes the Consumer Protection Act an additional law and not a law in derogation of any other law), provided that the advertisement in question contains a false representation coming within the 4 corners of sub-clauses (i) to (x) of clause (1) of section 2(1)(r) of the Consumer Protection Act.
(e) A careful scrutiny of all the sub-clauses in section 2(1)(r) of the Consumer Protection Act would show that 4 types of representations are categorised as "unfair trade practices"
namely (1) false representations falling under sub-clauses (i),
(ii) and (iii); (2) representations which may not necessarily be false but are nevertheless incorrect coming under sub-clauses
(iv) and (v); (3) warranty or guarantee coming under sub-
clauses (vii) and (viii); and (4) false or misleading representations falling under sub-clauses (vi), (ix) and (x). If an advertisement contains a false representation within the meaning of sub clauses (i) to (iii) or an incorrect representation within the meaning of sub clauses (iv) and (v) or a warranty or guarantee within the meaning of sub clauses (vii) and (viii) or a false or misleading representation or fact within the meaning of sub clauses (vii), (ix) and (x) of clause (1) of section 2(1)(r) of the Consumer Protection Act, then an action may lie.
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(f) In the light of the above statutory prescription, it is doubtful if false claims by traders, about the superiority of their products, either simplicitor or in comparison with the products of their rivals, is permissible in law. In other words, the law as it stands today, does not appear to tolerate puffery anymore. I do not know if "Puffing" which is only a twin sister of "bluffing", permitted by English courts in the past, still has the sanction of law even in England, after the advent of 'legacy regulators' such as CAP, Oftel, Ofcom, Clearcast etc., and the issue of The Control of Misleading Advertisement Regulations,1988 (as amended by Regulations of 2000) and the enactment of the Communications Act, 2003.
(g) An advertisement which tends to enlighten the consumer either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products, is for the public good and hence cannot be taken to be an actionable wrong, unless 2 tests are satisfied namely (i) that it is motivated by malice and (ii) that it is also false. This is on account of the fact that a competitor is more well equipped to make such an exposure than anyone else and hence the benefit that would flow to the society at large on account of such exposure, would always outweigh the loss of business for the person affected. If Page 64/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 2 trade rivals indulge in puffery without hitting each other, the consumer is misled by both, unless there is increased awareness or Governmental intervention. On the other hand, if both are restrained from either making false representations/incorrect representations/ misleading representations or issuing unintended warranties (as defined as unfair trade practice under the Consumer Protection Act), then the consumer stands to gain. Similarly, permitting 2 trade rivals to expose each other in a truthful manner, will also result in consumer education.
68. In so far as the first objection of the plaintiff is concerned, there is no dispute about the fact that the stain removal capacity of bleach based cleaners is much less than the stain removal capacity of acid based cleaners. In paragraph 5 of the plaint in C.S.No.1128 of 2007, the manufacturer Hindustan Unilever Ltd., has admitted this fact in the form of a comparative table as follows:-
Characteristic Bleach based Acid based
Removing lime scale deposits Low High
Germ Kill High Low
Taking commercial advantage of this statement of actual fact, the first defendant claims in the offending advertisement that bleach based cleaners merely cover the stain (lime scale deposits). That the germs hide under the stain so covered, is Page 65/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 nothing but a logical extension of the above statement of actual fact. Therefore it cannot be termed either as false or misleading. It cannot even be termed as generic disparagement of all bleach based cleaners, since what is stated is a matter of fact. Therefore, I find the first objection unsustainable.”
(vii)2003 (8) AIC 583 : Manu/DE/0299/2003 [Reckit Benckiser (India) Limited Vs. Naga Limited and Ors.], wherein the High Court of Delhi held as follows:
“...
7. On a reading of the plaint I find the statement significant that the "consumers perceive Dettol soap as strong and effective in maintaining personal hygiene and regard it as an efficient antiseptic soap that kills harmful germs and bacteria and ensures good health and hygiene..... It is submitted that Dettol Soap has earned the consumers' confidence because it has been tried and tested by the consumers inducing a belief in them that Dettol soap has all the properties that an antiseptic soap for personal hygiene must have. It is further submitted that Dettol soap conforms to the high and strict standards prescribed by the Bureau of Indian Standards (BIS) for anti-
bacterial soaps" (underlining has been added by me). In my opinion, the plaintiff's claim that its soap has been disparaged Page 66/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 is entirely indefenseable. If a competitor makes the consumer aware of his mistaken impression, the plaintiff cannot be heard to complain of such action. I find it difficult, nay impossible, to hold a party liable for libel when all that has been stated by the competitor is the truth. Truth is always a complete defense against any assault or challenge regardless of whether any damage is sustained as a result of it. It is indeed unfortunate that the Government has not established an authority armed with sufficient powers to put a stop to false advertising. It is not difficult to distinguish between claims that are exaggerated and those which are false; the latter should be stopped by a Regulatory Authority. The public perception is that Dettol soap shares the same medicinal and curative qualities as the Dettol liquid. It matters little whether this misunderstanding has been contrived by the manufacturer or has developed in the consumers mind independently. However, in the present case it is the plaintiff's own averment that this belief has been induced by it and nevertheless it is sanguine enough to expect discretion to be exercised in its favor. If any party, such as the Defendant, helps in correcting the error, it commits no illegality. The tortious injunction, which is the backbone of the present action, is predicated on falsehood, and in the present circumstances, the falsehood can be laid at the door of the plaintiff and not of the Defendant. Once this conclusion is Page 67/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 arrived at, it is not possible to grant any injunctory relief.”
11.Countering the submissions made by the learned senior counsel for the appellant, Dr.Abishek Manu Singhvi, learned senior counsel for the respondent submitted that the justification of truth is not available to the defendant since the defendant has not produced any evidence to show that less than ¾th bottle of “NIMYLE” shall not provide 99.9% germ protection.
The learned senior counsel also submitted that the distinction between germs and virus has been clearly mentioned in the instructions for use of “LIZOL”. The learned senior counsel submitted that the expression through advertisement like any other fundamental right is subject to the reasonable restrictions imposed under Article 19(2) of the Constitution and the defamatory expressions are restricted and no defence of truth or otherwise can be pleaded. Further, the learned senior counsel submitted that under the guise of comparative advertisement and education to the consumers, false information and disparaging remarks are made against the applicant's product, which is not legally permissible.
Page 68/95https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 11.1.In support of his contentions, the learned senior counsel for the respondent/plaintiff relied upon the following judgments:
(i)1990 (Supp) Supreme Court Cases 727 [Wander Ltd. and another Vs. Antox India P. Ltd.] wherein the Hon'ble Supreme Court held as follows:
“...
14.The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the Page 69/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.
After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.” The appellate judgment does not seem to defer to this principle.”
(ii)(2013) 9 Supreme Court Cases 221 [Mohd. Mehtab Khan and others Vs. Khushnuma Ibrahim Khan and others], wherein the Hon'ble Page 70/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Supreme Court held as follows:
“...
20.In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the appellate court could not have interfered with the exercise of discretion by the learned trial Judge unless such exercise was found to be palpably incorrect or untenable.
The reasons that weighed with the learned trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The appellate court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the appellate court was wrong in its conclusions what is sought to be emphasised is that as long as the view of the trial court was a possible view the appellate court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd. [Wander Ltd.
Page 71/95https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 v. Antox India (P) Ltd., 1990 Supp SCC 727]”
(iii)2020-5-L.W.881 : Manu/TN/6214/2020 [Reckitt Benckiser Healthcare India Private Limited Vs. Cipla Limited] wherein this Court held as follows:
“...
43.The next false averment made by the applicant relates to the statements attributed by the applicant to the story board.
At the commencement of the discussion at paragraph. No.24 I have narrated the statements made by the applicant in the Application. If the same is read in conjunction with the frame by frame story board extracted by me in Paragraph No.32, it would be clearly evident how the applicant has twisted the statements out of context and totally contrary to what has been depicted to snatch an interim order. It is an axiomatic principle of law that a person who seeks an order of injunction should come to Court with clean hands. The above factors would clearly indicate that the applicant has suppressed material facts from Court. This point is also answered against the applicant.” Page 72/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021
(iv)Manu/WB/0584/2015 : 2015(4) CHN (CAL) 19 [Reckitt Benckiser Health Care (India) Pvt. Vs. Emami Ltd. and ors.], wherein the Division Bench of the Calcutta High Court held as follows:
“...
34.Since no prima facie proof regarding the truthfulness in such comparison is forthcoming from the side of the defendant No.1, we have no hesitation to hold that such comparison was in effect, actuated by malice to disparage and/or denigrate the product of the plaintiff by conveying a wrong and deceptible message to the public about the effectiveness of the plaintiff's product for which the plaintiff's product should be discarded and the product of the defendant No.1 should be preferred over the plaintiff's product.”
(v)2018 SCC Online Mad 1126 [Gillette India Limited, The Manor, 3-B, 3rd Floor, 31/14 A, College Road, Thousand Lights, Chennai – 600 006 represented by its Authorized Signatory, Siddhant Sharma Vs. Reckitt Benckiser (India) Private Limited 227, Okhla Industrial Estate, Phase-III, Okhla, New Delhi – 110 020, represented by its Authorized Page 73/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 Signatory, Mr.Rajesh Kumar Jha], wherein the Division Bench of this Court held as follows:
“...
86.In an ever growing and highly competitive market for consumer goods, advertisements play an important part in attracting customers. advertisements are, inter alia, issued by way of installation of digital boards in strategic locations, erection of hoardings and banners in crowded places, distribution of pamphlets in case of products and services of smaller entrepreneurs, pictorial depictions, including cartoons in the print media, short films, skits, screen shots, etc. exhibited, inter alia, in the electronic audio visual and social media and in cinemas and multiplexes.
...
93.We are in full agreement with the view of the learned Single Bench in Reckitt & Colman of India v. M.P. Ramachandran, supra, that:
“(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 Page 74/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 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 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.” ...
95.Even though it is now well settled that comparative advertising is permissible and it is open to an advertiser to compare the goods or services advertised with those of others and portray the goods or services advertised as better than those of others, this can only be done without denigrating or disparaging the goods or services of others.
96.The meaning of the expression “disparage” as given in the commonly used dictionaries is, inter alia, to speak slightingly, to undervalue, to bring discredit or dishonour, to deprecate, to degrade, to derogate, to denigrate, to defame, to Page 75/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 reproach, to disgrace, or to unjustly class. Disparagement is, inter alia, the act of speaking slightingly, of undervaluing, of bringing discredit or dishonour, of deprecating or degrading or disgracing or unjust classing. It also means derogation or denigration or defamation or reproachment.
97.Whether an advertisement is disparaging or not would depend on several factors, for which each advertisement would have to be judged on its own merits, on consideration of the overall impact of the picture that is portrayed, the language used, the histrionics, the gesticulations, the movements, acrobatics, catch phrases, hilarity or other catchy screen shots. While humour, hilarity or even ridiculing to highlight the advantages of one's own product may be permissible, ridiculing services and products of another would amount to disparagement.
98.To decide whether an advertisement is disparaging, the Court has to consider (i) the intent of the commercial advertisement; (ii) the message sought to be conveyed; and (iii) the mode and manner of conveying the message. Condemning the goods and services of a competitor or ridiculing the same or showing the same as substandard would amount to disparagement.
...
105.If in a suit for disparagement in relation to an Page 76/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 advertisement a strong prima facie case of disparagement is made out, injunction would necessarily have to be granted, for pecuniary compensation could never compensate defamation and/or disparagement. By grant of injunction, the opposite party would only be restrained from disparaging the applicant for injunction till a final decision was taken by the Court. The prejudice to the applicant for injunction by continuous exhibition of disparaging advertisements would be irreparable, and far greater than the prejudice to the opposite party, if the applicant ultimately succeeded.
...
116.It is true, as argued by Mr. Raman, that there is no specific reference to “VEET” in the advertisement. However, admittedly, the respondent plaintiff dominates 80% of the market in depilatory creams. As observed above, the overall impression created by the advertisement by way of video clip is that all hair removal creams, which would include the hair removal creams of the respondent plaintiff, are harmful, having strong chemicals which are as strong as bathroom cleaners. Prima facie, there is disparagement of the depilatory cream of the respondent plaintiff.
117.Defence of truth may be a good defence in a disparagement suit. However, whether the advertisement is truthful or not would necessarily have to be adjudicated upon Page 77/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 trial. Disputes as to whether the acidity or the alkalinity of depilatory creams of the respondent plaintiff is beyond the safety limits cannot be decided at the interlocutory stage.”
(vi)2008 (38) PTC 37 (Mad.) [Annamalayar Agencies Vs. VVS & Sons Pvt. Ltd. & Ors] wherein this Court held as follows:
“...
27.In (2006) 32 PTC 677 (Del.) (cited supra), the Delhi High Court held as follows:
“22. The intent of the commercial is to suggest that the product of the defendant, that is. Wipro Sanjivani Honey is far superior to that of the plaintiff, that is, Dabur Honey. While doing so, the commercial does not denigrate or disparage the product of the plaintiff-it merely compares the two brands of honey and proclaims that the product of the defendant is superior. It seems to me that it is one thing to say that the defendant's product is better than that of the plaintiff and it is another thing to say that the plaintiff's product is inferior to that of the defendant. The commercial clearly intends to say (and so it does) that as compared to the product of the plaintiff, the product of the defendant is far better. The Page 78/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 hidden message in this may be that the product of the plaintiff is inferior to that of the defendant but that will always happen in a case of comparison-while comparing two products, the advertised product will but naturally have to be shown as better. The law, as accepted by this Court, is that it is permissible for an advertiser to proclaim that its product in the best. This necessarily implies that all other similar products are inferior.” “23. In comparative advertising a consumer may look at a commercial from a particular point of view and come to a conclusion that one product is superior to the other, while another consumer may look at the same commercial from another point of view and come to a conclusion that one product is inferior to the other. Disparagement of a product should be defamatory or should border on defamation, a view that has consistently been endorsed by this Court. In other words, the degree of disparagement must be such that it would tantamount to, or almost tantamount to defamation. In the present case, the overall audio-visual impact does not leave an impression that the story line of the commercial and the message that is sought to be conveyed by it is that Dabur Honey is being denigrated, but rather that Wipro Sanajivani Honey is better.” Page 79/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 “24. Learned counsel for the defendant objected to the use of the bottle of Dabur Honey, which is its registered design and submitted that the use of this bottle in the commercial leaves no manner of doubt that the product sought to be compared by the advertiser is Dabur Honey. While this may be so, the bottle of Dabur Honey is shown for a fleeting moment and this is immediately followed by another unnamed and undisclosed brand of honey whose bottle cannot even be located. In other words, the idea behind the commercial is that Wipro Sanjivani Honey is better than any other honey in the market and even if the insinuation is that it is better than Dabur Honey, there is nothing wrong in the defendant sayaing so as long as there is no disparagement (in the sense of defamation) of the product of the plaintiff. This disparagement is lacking in the commercial.” “25. A manufacturer of a product ought not to be hypersensitive in such matters. It is necessary to remember that market forces are far stronger than the best advertisements. If a product is good and can stand up to be counted, adverse advertising may temporarily damage its market acceptability, but certainly not in the long run.” ...Page 80/95
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29.The following are the legal principles that arise for consideration from the above citations:
(1) A manufacturer of a disparaged product which though not identified by name can complain of and seek to injunct such disparagement.
(2) Generic disparagement of a rival product without specifically identifying or pinpointing the rival product is equally objectionable.
(3) Advertisement campaign on visual media has an immediate impact on the viewers and possible purchasers' mind particularly a well known cinema star is endorsing it.
(4) There must be a dividing line between statements that are actionable and those which are not.
(5) When a claim of superiority over a rival product is made and until the same is proved by a panel of experts, an order of interim nature should operate against those advertisements.
(6) Advertiser has a right to boast of its technological superiority in comparison with a product of a competitor, however while doing so, he cannot disparage the goods of the competitor.
(7) If the defendants highlight its better future while comparing its product with that of the plaintiff in an Page 81/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 advertisement, no possible objection can be raised thereto.
(8) Courts will injunct an advertiser from publishing an article if the dominant purpose is to injure the reputation of the plaintiff.
(9) The factors to be kept in mind to decide the question of disparagement are (1) intent of the commercial (2) manner of the commercial (3) story line of the commercial, and (4) the message sought to be conveyed by the commercial.
(10) The degree of disparagement must be such that it would tantamount to or almost tantamount to defamation.
(11) An advertiser can say that his product is better than that of his rival, but he cannot say that the rival's product is inferior to his product.”
(vii)2009 (40) PTC 653 (Mad.) [Colgate-Palmolive (India) Limited Vs. Anchor Health & Beauty Care Private Ltd.], wherein this Court held as follows:
“...
28.Turning to the development of law on the issue in Page 82/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 India, it appears that the earliest decision was that of the Calcutta High Court in Cholride Industries Ltd. Vs. The Standard Batteries Ltd., decided on 30-9-1994. It was an action brought forth by the manufacturers of Exide Battery against their competitor on the ground that the competitor indulged in disparagement. A single Judge of the Calcutta High Court held therein that if the goods are disparaged maliciously or with some other such intent to injure and not by way of fair trade rivalry, the same would be actionable. Though this is an unreported decision, it was cited and followed in the subsequent decision of the same High Court in Reckitt & Colman of India Ltd. Vs. M.P.Ramachandran & others, 1999 PTC (19) 741.”
(viii)2004 (77) DRJ 415 [Dabur India Limited Vs. Colgate Palmolice India Ltd], wherein the High Court of Delhi held as follows:
“...
21.The advertisement campaign on the visual media has an immediate impact on the viewers and possible purchaser's mind particularly when a well known cinestar is endorsing it.
The plaintiff has thus made out a prima facie case of comparative strength particularly when the defendant does not Page 83/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 deny that its campaign points out the deleterious effect of Lal Dant Manjan powder. The balance of convenience is also in the favor of the plaintiff as the effect of the advertisement aired cannot be repaired readily and easily. The averred right of the defendant to inform the purchasing public of the ill effects of the Lal Dant Manjan powder based on its commissioned study cannot tilt the balance of convenience in the favor of the defendant particularly when the plaintiff also seeks to rely upon studies commissioned by it to back up the merits of its product. Consequently, the non grant of an interim injunction would cause irreparable injury to the plaintiff not compassable in damages.”
(ix)2003 (8) AIC 583 : Manu/DE/0299/2003 [Reckit Benckiser (India) Limited Vs. Naga Limited and Ors.], wherein the High Court of Delhi held as follows:
“...
8.I have already mentioned that in my view the prescription contained in Order II Rule 2 is fatal to the present Suit. Apart from this, it is trite to state that discretionary relief is not available to a party which does not disclose all material facts and does not act with diligent expedition. My attention Page 84/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 has been drawn to the fact that the plaintiff had complained against the impugned advertisement to the Advertising Standards Council of India (ASCI) on 30.11.2002. After hearing the parties, the complaint was rejected by a decision dated 17.1.2003. Quite obviously, the plaintiff was hopeful of getting some relief in that Forum and, Therefore, did not file the present Suit earlier than it did. These events have been suppressed by the plaintiff. It must be realistically prudent to apprehend that an ex-parte ad interim injunction would have not been granted in the face of the rejection of the plaintiff's complaint by a specialised body such as the ASCI. While dealing with the accrual of the cause of action in paragraph 19 of the plaint, while there is mention of a consumer survey conducted in October, 2002, there is a total blackout regarding the proceedings before the ASCI. Such material and significant suppression can only lead to be indicative of misleading the Court and on this score alone would completely defeat the Suit, It has been alleged by the Defendant that the T.V. commercials have been widely broadcast since June, 2002. In Reply it has been stated that the plaintiff was unaware of these advertisements since they were telecast in South India. It has also been contended on behalf of the plaintiff that rather than rushing to the Court, it was considered wise and proper to conduct a market survey to ascertain how the impugned Page 85/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 commercial was viewed and received by the consumers. I cannot accept this version since it is quite evident to me that the present Suit has only been filed after the unsuccessful and futile complaint filed by the plaintiff and its futile foray before the ASCI. Failure to disclose all relevant facts defeats the demand for discretionary relief. The plaintiff has also indubitably approached this Court after considerable delay and, Therefore, has disentitled itself to the grant of discretionary relief.”
12.On a careful consideration of the materials available on record, the submissions made by the learned senior counsel appearing on either side and also the judgments relied upon by the respective learned senior counsel, it could be seen that the contention of the respondent/plaintiff is that the freedom of expression through advertisement by business house cannot be an absolute freedom, but subject to the restrictions. Further, the commercial advertisement cannot cross the line by offending or disparaging the rival product. Countering the said contention, the appellant/defendant contended that it is the fundamental right to display comparative advertisement and statements found in the advertisement are true. Further, they contended that Page 86/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 the customers have a right to be informed about the products. Further, they claimed that the commercial speech form part of fundamental right and telling the truth to the public cannot be restrained by a judicial order. It is not in dispute that publication of advertisement being through commercial speech is protected by Article 19(1)(a) of the Constitution as per the dictum of the Apex Court in Tata Press Ltd Vs. Mahanagar Telephone Nigam Ltd reported in 1995 (5) SCC 139. However, there are a few restrictions on the aforesaid right, which would satisfy the test of reasonableness under Article 19(2). These restrictions could be traced to the definition of the term "unfair trade practice" in Section 36 A of the Monopolies and Restrictive Trade Practices Act, 1969 and Section 2(1)(r) of the Consumer Protection Act, 1986. An advertisement, which tends to enlighten the consumer, either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits or demerits of their respective products, is for the public good and hence, cannot be taken to be an actionable wrong, unless, 2 tests are satisfied, namely (i) that it is mere motivation by malice and (ii) that it is also false.Page 87/95
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13.From the story-board, extracted above, of the appellant's advertisement alleged to be disparaging, featuring a lady demonstrating, clearly indicates and target the consumers of the respondent floor cleaner.
In the advertisement, it has been conveyed that the herbal floor cleaner, which is green in colour, will not kill 99.9% germs, if 2-3 caps full of the liquid is added with water in 1:5 ratio. To get the desired result, one has to add 800 ml of the herbal cleaner in ½ a bucket of water (i.e.) 4 litres of water. The comparison found in the last, but one slide, indicates that “LIZOL”, the product of the appellant requires only one cap full of liquid for 4 litres to kill Covid-19 virus.
14.On a perusal of the story-board, extracted above, the 2 middle rows of the products displayed on the right side of the demonstrating lady, are identical to the products of the respondent. The 2 rows contain the bottles in green colour in 2 different shapes and the word “herbal” is visibly shown to the viewers by the demonstrator and the voice over says that the herbal products in the bottle will not kill 99.9% germs. The bottles arranged Page 88/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 in 2 middle rows and mentioning the word “herbal” in the said bottles is identical to the bottle of the respondent/plaintiff. It is settled law that disparaging advertisement whereby the product of the competitor is denigrated is not permissible.
15.In a given case, the Court is required to find out as to whether the advertiser is merely trying to promote his product for which even he is allowed to puff up his product and can even go to the extent of saying that his goods are better than his competitor's, but at the same time, he cannot brand the competitor's product as bad. While saying that his goods are better than his competitor's, he cannot say that his competitor's goods are bad. If he says so, he really slanders the goods of the competitor. In other words, he defames his competitors and their goods, which is not permissible.
16.In the judgment reported in 2018 SCC Online Mad 1126 [Gillette India Limited Vs. Reckitt Benckiser (India) Private Limited], cited supra, the Division Bench of this Court held that if in a suit for disparagement in Page 89/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 relation to an advertisement, a strong prima facie case of disparagement is made out, injunction would necessarily have to be granted, for pecuniary compensation could never compensate defamation and/or disparagement.
By grant of injunction, the opposite party would only be restrained from disparaging the applicant for injunction till a final decision was taken by the Court. The prejudice to the applicant for injunction by continuous exhibition of disparaging advertisements would be irreparable and far greater than the prejudice to the opposite party, if the applicant ultimately succeeded. Further, the Division Bench held that the defence of truth may be a good defence in a disparagement suit. However, whether the advertisement is truthful or not would necessarily have to be adjudicated upon trial. The disputes, as to whether the acidity or the alkalinity of depilatory creams of the respondent/plaintiff is beyond the safety limits, cannot be decided at the interlocutory stage. In the case on hand, in the green colour bottles of a particular shape and design, the word “herbal” has been printed on the label and displayed in middle 2 rows on the right side of the demonstrator. The demonstrator drew the attention of the viewers to read the label of the herbal floor cleaner. Thereafter, the demonstrator says Page 90/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 that 1:5 ratio refers to the proportion of the herbal liquid and water.
Thereafter, the demonstrator says that this will not kill 99.9% germs. From the said advertisement, which is the subject matter of the present appeals, it is clear that the herbal cleaner, which is green in colour, will not kill 99.9% germs and 800 ml of herbal liquid is required, whereas 2-3 caps full “LIZOL” is sufficient for the same result.
17.The learned senior counsel appearing for the respondent submitted that the respondent is the only Company manufacturing herbal floor cleaners in the Country. That being the case, when the bottle found in the hands of the demonstrator is similar to the bottles arranged either in the 2nd row or in the 3rd row convey that the green colour herbal floor cleaners are not effective and it will not kill 99.9% germs and 800 ml of herbal liquid is required for achieving the required efficacy, in commercial parlance, such assertion is disparaging and discrediting the rival product. Such statement shall not fall within the ambit of fair comment or truth. In the judgment reported in 2008 (38) PTC 37 (Mad.) [Annamalayar Agencies Vs. VVS & Sons Pvt. Ltd. & Ors], cited supra, this Court held that a manufacturer of Page 91/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 disparaged product, which, though not identified by name, can complain of and seek to injunct such disparagement. Further, this Court held that an advertiser has a right to boast of its technological superiority in comparison with a product of a competitor, however, while doing so, he cannot disparage the goods of the competitor. A tradesman is entitled to declare his goods are the best in the world, even though the declaration is untrue. He can also say that his goods are better than his competitors', even though such statement is untrue. 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. 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. 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. If an advertiser apparently Page 92/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 conveys a message, which appears to be disparaging, the justification of truth necessarily have to be decided in the trial. By viewing the advertisement, the viewers would be mislead as though the herbal floor cleaners are ineffective. More particularly, the herbal cleaners, which are in green colour, will not kill 99.9% germs and the herbal floor cleaners which are in green colour found in a particular shape of bottle identical to the respondent's herbal floor cleaner bottles will not kill 99.9% germs and it requires more quantity than the appellant's product, viz., “LIZOL”, for effective result.
18.On a perusal of the story-board, extracted above, it is also clear that the expression “herbal” is the identification mark similar to the respondent's product “NIMYLE” and the colour of the bottle is also identical. The message sought to be conveyed through the impugned advertisement amounts to defamation and disparaging. Further, the advertisement, without any scientific analysis, says that the product with chemical is better than the herbal floor cleaners. The respondent has made out a prima facie case for the grant of interim injunction. The balance of Page 93/95 https://www.mhc.tn.gov.in/judis O.S.A.(CAD).Nos.98 to 100 of 2021 convenience also is in favour of the respondent/plaintiff. As already stated, in the event of the advertisement being allowed to continue, it would cause irreparable injury to the respondent/plaintiff. Therefore, till the claim of the appellant that their product “LIZOL” is superior to the herbal product is proved scientifically in the Civil Suit, the advertisement cannot be allowed to continue. When the appellant is contending that the claim of the respondent/plaintiff is not true and that they have advertised only the truth, the said claim can be established only by adducing oral and documentary evidences at the time of trial. The learned Single Judge, taking into consideration all these aspects, rightly granted an order of injunction and allowed the Original Applications. We do not find any ground to interfere with the order passed by the learned Single Judge. The Original Side Appeals are liable to be dismissed. Accordingly, the Original Side Appeals are dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
Index : Yes [M.D., J.] [T.V.T.S., J.]
va 17.03.2022
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O.S.A.(CAD).Nos.98 to 100 of 2021
M.DURAISWAMY, J.
and
T.V.THAMILSELVI, J.
va
Common Judgment in
O.S.A.(CAD).Nos.98 to 100 of 2021
and C.M.P.Nos.17120 to 17122 of 2021
17.03.2022
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