Madras High Court
Unknown vs The Results Obtained. The Resulting ...
O.A.Nos.316 to 320 of 2012, and A.Nos.2353 & 2354 of 2012 in C.S.No.274 of 2012 VINOD K. SHARMA,J.,
i)O.A.316 of 2012: This application has been filed under Order XIV Rule 8 of O.S.Rules r/w Order 39 Rules 1 & 2 and Section 151 of the Code of Civil Procedure, for grant of ad-interim injunction, restraining the respondents, its men, servants, agents, assigns, directors, officers or any person claiming through or under them from issuing, circulating, publishing the offending advertisements (the theme of which is titled Jago Grahak Jago), filed as plaint Doc.No.1 or in any other similar advertisement in any other media, which is filed as plaint Doc.No.3 or any article in magazine published in Consumer Voice filed as plaint Doc.No.2 which refer to the test conducted and the scores and or ranking given thereby seeking to disparage / denigrate the applicant's products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit.
ii)O.A.317 of 2012: This application has been moved under Order XIV Rule 8 of O.S.Rules r/w Order 39 Rules 1 & 2 and Section 151 of the Code of Civil Procedure, for grant of ad-interim injunction, restraining the respondents, its men, servants, agents, assigns, directors, officers or any person claiming through or under them from in any manner publishing, circulating, advertising the article or the tests conducted and ranking given by the 3rd and 4th respondents in their magazine or any other similar advertisement by referring to and relying upon the test report of the 3rd and 4th respondents or any other advertisements which seek to disparage / denigrate the applicant's products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit.
iii)O.A.318 of 2012: This application is also under Order XIV Rule 8 of O.S.Rules r/w Order 39 Rules 1 & 2 and Section 151 of the Code of Civil Procedure, for grant of ad-interim injunction, restraining the respondents, its men, servants, agents, assigns, directors, officers or any person claiming through or under them from making any false, misleading and disparaging representations or from making any slanderous statements / representations in respect of the applicant's products, pending disposal of the suit.
iv)O.A.319 of 2012: This application again has been filed under Order XIV Rule 8 of O.S.Rules r/w Order 39 Rules 1 & 2 and Section 151 of the Code of Civil Procedure, for grant of ad-interim injunction, restraining the respondents, its men, servants, agents, assigns, directors, officers or any person claiming through or under them from conducting the tests for biological efficacy for liquid vaporizers or any other product which seek to disparage / denigrate the applicant's products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit.
v)O.A.320 of 2012: This application has been filed under Order XIV Rule 8 of O.S.Rules r/w Order 39 Rules 1 & 2 and Section 151 of the Code of Civil Procedure, for grant of ad-interim injunction, restraining the respondents, its men, servants, agents, assigns, directors, officers or any person claiming through or under them from redistribution, copying and or distribution of the article published in Consumer Voice Magazine February 2012 issue or any other similar material, including point of sale material like danglers, posters etc. to any agent, trader, distributor or any other person, whatsoever, pending disposal of the suit.
2. The reading of all these applications would show, that overlapping relief in all these applications have been made by invoking Order XIV Rule 5 of the O.S.Rules, which reads as under:
"5.(a) A Judges summons, or Masters summons shall state the provision of law under which it is made and shall not contain more than one prayer unless the prayers are consequential. It shall state only the substance of the order prayed for without any statement of facts or argument. Unless otherwise ordered, any facts required to be proved shall be proved by affidavit.
(b) If a party prays for several reliefs on the basis of a common affidavit it is sufficient to sign the original affidavit as required by law which shall company one of the Judges summons. Each other Judges summons shall be accompanied by a copy of the common affidavit certified by the counsel or the party, if he appears in person, to be a true copy.
(c) If the prayer in the summons is for amendment of pleadings, order or other proceeding, full particulars of the amendments sought, should be set out in the summons.
3. The reading of Order XIV Rule 5 itself shows, that necessity of filing different Judges' summons arises only in case where the reliefs claimed are not connected, but in case prayers are consequential, then one application itself is to be filed in view of Order II Rule 2 of CPC.
4. The reading of applications would shows, that O.A.Nos.316 to 318 of 2012 are qua the same relief with minor modification. Similarly, O.A.Nos.319 and 320 of 2012 are also similar as prayer in O.A.No.320 of 2012 is consequential to the prayer in O.A.No.319 of 2012.
5. When the matter came up for hearing on 19.04.2012, this Court, while issuing notice to the respondents for 04.06.2012, was pleased to grant order of interim injunction. The order passed by this Court reads as under:
"These applications have been filed to grant an ad-interim injunction restraining the respondents, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them from issuing/ circulating/ publishing the offending advertisement/s [the theme of which is titled-Jago Grahak Jago], filed as plaint Doc.No.1 or any other similar advertisement in any other media, which is filed as plaint Doc.No.3 or any article in magazine published in Consumer Voice filed as plaint Doc.2 which refer to the test conducted and the scores and/or ranking given thereby seeking to disparage/denigrate the applicant's products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit and to grant an ad-interim injunction restraining the respondents, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them from redistribution/copying and/or distribution of the article published in Consumer Voice Magazine February 2012 issue or any other similar material, including point of sale material like danglers, posters, etc. to any agent, trader, distributor or any other person, whatsoever, pending disposal of the suit.
2.The applicant/plaintiff is the company. It is engaged in manufacturing, packaging, marketing, sale and distribution of various fast moving consumer goods, including mosquito repellents, which are available in mats, refills, coils, liquid vaporizers etc. The applicant is manufacturing mosquito liquid vaporizers products and sold under the brand 'Good Knight Advance Activ+' in particular.
3.The first respondent, who is being a leading manufacturer in mosquito liquid vaporizer under the brand name 'All Out' issued an advertisement in regional newspapers like 'Dinamalar' on 15.03.2012 and 21.03.2012 in as many as 8 to 10 editions and also in national newspapers, like 'The Hindu' and 'The Times of India' discrediting and disparaging the plaintiffs 'Good knight Advanced Activ+' product thereby indulging in unfair trade practice, namely the practice of promoting the same of goods and provision of services adopting unfair or deceptive practice including, inter alia, the statement made, whether orally or in writing or by visible representation of giving false or misleading facts disparaging the goods or trade of the plaintiff.
4.The third respondent, who is the publisher of monthly magazine Consumer Voice based on a comparison of incomparable products, the usage of an arbitrary and hybrid test protocol devised in favour of the first defendant and publishing its results in an article in a magazine Consumer Voice printed and published by the fourth respondent for the third respondent. The first respondent by using an arbitrary and hybrid test protocol devised by the third respondent issued advertisement discrediting and disparaging of 'Good Knight Advance Activ+' product.
5.It is the further case of the applicant that the third respondent does not have the requisite expertise to conduct tests to gauge the biological efficacy of mosquito repellents liquid vaporizers. The test report published by the third respondent is not by comparing and testing the product of similar in nature. There is a complete lack of transparency on the part of the defendants to show the product compared and the said test similar in nature. The first defendant by using the un-authenticated test report published by the third respondent issued advertisement discrediting and disparaging the plaintiff produce 'Good Knight Advance Activ+'.
6.Heard the learned counsel appearing for the applicant and perused the plaint Doc.No.1 issued in local 'Dinamalar' newspaper dated 21.03.2012 and also the plaint Doc.No.3 Advertisement issued by the Defendants in The Times of India, dated 19.03.2012 and 29.03.2012 and Pages 3,7 to 11 containing the article in the magazine 'Consumer Voice' printed and published by the third and fourth defendants, dated February 2012. I find that in the Doc.No.1 the plaintiff/applicant's product was shown as No.4 in rank and the respondent product was No.1 in rank. The said document produced by the applicant would show that the said advertisement was issued based on the article published by the third and fourth respondents in 'Consumer Voice'.
7.Therefore, I am satisfied that the applicant has made out a prima facie case for granting interim injunction. By way of granting interim order, no prejudice will be caused to the respondents and if no interim order is passed, the respondents may go adverse to the interest of the applicant. So, balance of convenience is only in favour of the applicant. Hence, there shall be an order of interim injunction till 04.06.2012. Notice to the respondents, returnable by 04.06.2012. Private notice is also permitted.
6. Order XIV Rule 7 of O.S.Rules reads as under:
7. The Judge, if satisfied that there is urgency, may, on payment of an additional fee of Rs.2 hear any application with respect to any matter and make an order ex parte, or otherwise, upon such terms as to costs or otherwise, as the Court may think just, or may adjourn the further hearing of the application for notice to be given to the part affected by the order. A party affected by an ex parte, interlocutory order, may file a counter-affidavit after, due service of a copy thereof on the opposite party along with a letter of request to the Registrar to include the application for hearing in the list urgently. On being satisfied with the urgency of the matter, the Registrar shall direct the application to be posted for hearing before Court.
7. The defendant nos.1 & 2, instead of filing counter as per O.S.Rules, have chosen to file A.Nos.2353 and 2354 of 2012 under Order XIV Rule 8 of O.S.Rules r/w Order 39 Rule 4 and Section 151 of CPC, for vacation of exparte interim injunction.
8. Order XIV Rule 8 of O.S.Rules reads as under:
8. All applications other than those mentioned in Rule 10 infra shall be disposed of by a Judge; Provided that a Judge may refer any matter brought before him under this rule to a Division Bench.
9. It is settled law, that the Original Side Rules framed by the Chartered High Court, have overriding effect on the provisions of the Code of Civil Procedure, therefore, in view of Order XIV Rule 7 of O.S.Rules, it was not open to the defendant / non applicant to move application for vacation of interim order, which was yet to be confirmed. The remedy with the defendant / non applicant in fact was to file counter and seek the hearing of the case.
10. The defendant nos.3 & 4 however filed a counter to oppose the applications filed by the plaintiff / applicant.
11. The facts pleaded in all these applications are same, which only show, that the reliefs, though worded differently, are only consequential relief, which could be covered under one application.
12. In order to understand the case of the parties, it is necessary to reproduce the affidavit filed in support of the applications, referred to above, which reads as under:
"1. I am the General Manager - Legal of the applicant/ plaintiff company, and as such i am well acquainted with the facts of the case and competent to swear to this affidavit.
2. The Applicant is an existing Company under the Companies Act, 1956 and is, inter-alia, engaged in the manufacture, packaging, marketing, sale and distribution of various fast moving consumer goods, including mosquito repellents, which are available in mats, refills, coils, liquid vaporizers etc. The Applicant has its mosquito repellents of different types and different variants manufactured at its factories in Pondicherry, Guwahati (Assam), Jammu & Goa.
Newspaper Advertisements & Magazine- Unfair Trade Practice/Slander of Goods/ Malacious Falsehood
3. The present Suit is being filed to seek relief to restrain the publication of the advertisements issued by the 1st Respondent in regional newspapers like Dinamalar on 15.03.2012 and 21.03.2012 in as many as 8 to 10 editions and also in national newspapers, like the Hindu and the Times of India discrediting and disparaging the applicants Good Knight Advanced Activ+ product thereby indulging in unfair trade practice namely, the practice of promoting the sale of goods and provision of services adopting unfair or deceptive practice including, inter-alia, the statement made, whether orally or in writing or by visible representation, of giving false or misleading facts disparaging the goods or trade of the Applicant. By the aforesaid newspaper advertisements, there is also slander of goods and malicious falsehood against the Good Knight Advanced Activ+ Liquid Vaporizer by the 1st Respondent. The 1st Respondent, being a leading manufacturer and being fully aware of the facts, has deliberately and intentionally acted in an irresponsible and reckless manner by issuing advertisements in newspapers all over India based on the unscientific, unreliable, arbitrary tests conducted by the 3rd Respondent based on a comparison of incomparable products, the usage of an arbitrary and hybrid test protocol devised to favour the 1st Respondent and publishing its results in an article in a magazine Consumer Voice (February 2012 Issue) printed and published by the 4th Respondent for the 3rd Respondent. Two other modified advertisement was issued by the Respondents on 19.03.2012 and 29.3.2012 in the Times of India where reference and reliance was once again placed on, inter alia, the test conducted by the 3rd Respondent. By the aforesaid advertisements and magazine, the Respondents are disparaging the applicants Good Knight brand, the entire range of mosquito repellents liquid vaporizers manufactured and sold under the Good Knight brand and targeting Good Knight Advanced Activ+ in particular.
4. The material facts leading to the publication of the impugned magazine and the issuance of the impugned newspaper advertisements, which are the subject matter of the present suit, are set out hereinafter.
Letter dated 28.12.2011
5. The applicant states that its Managing Director received a letter dated 28.12.2011 from the Head - Product Testing, Voice Society stating that they had conducted comparative testing of 10 brands, including Good Knight in an independent NABL accredited test laboratory, based on their finalized test programme. It was mentioned in the said letter that the test parameters were adopted from relevant Indian standards and relevant guidelines were adopted from Malaysian Standards for Efficacy Test. Test results of Good Knight Mosquito Repellent, Liquidiser Type (45ml), which scored 91% in the knock-down value test, were also forwarded and comments were sought from the Applicant Company.
Letter dated 6.2.2012
6. This letter was followed by yet another letter dated 06.02.2012 by Urgent Courier from Voice Society to Mr. Debojit Chakraborty, General Manager / Quality Control of the Applicant Company, enclosing the February 2012 issue of Consumer Voice covering comparative testing of mosquito repellent and asking for an order for purchase of test report at Rs.50,000/-. The letter insisted that the test report valued at Rs.50,000/- would help R&D of the Applicant Company to upgrade their product further.
7. A representative who identified himself as Mr. Pranay Sheth, General Manager-Marketing of the 4th / 5th Respondent repeatedly contacted Dr. Debojit Chakrabarty, Head-Quality Assurance of the Applicant Company several times thereafter asking him to purchase the said report costing Rs.50,000/-. However, the Applicant Company did not purchase the said report of the 4th Respondent published in the magazine of the 3rd Respondent. This was followed by the publication of the newspaper advertisements by Respondent No.2 all over India including Chennai.
Insecticides distinct from other products
8. The applicant states that the mosquito repellents including the liquid vaporizers manufactured and sold by the manufacturers including the Applicant and 1st Respondent Company contain active ingredients like Transfluthrin and are regarded as insecticide within the meaning of Section 3(e) of the Insecticides Act, 1968 and can be sold only upon grant and/or renewal of licenses under Section 13 of the Insecticides Act and the Insecticides Rules,1971. The insecticides are therefore distinct and different from other products since they are covered by the provisions of the Insecticides Act, 1968 and the Insecticides Rules,1971, which is a comprehensive law relating to insecticides. The Central Insecticides Board is constituted under Section 4 of the Insecticides Act to advise the Central Government on technical matters. The registration of insecticides under Section 9 of the Insecticides Act, 1968 which, inter alia, involves an enquiry and satisfaction by the Registration Committee that the insecticide conforms to the claims made by the manufacturer or importer as regards efficacy of insecticides and its safety to human beings and animals.
9. It may be clarified that for any party applying under Section 9(3) of the Insecticides Act , the CIB approved protocol based on WHO Guidelines has to be followed for testing the bioefficacy of the product and based on this the applicant is given approval and licence for selling the product in India. Moreover, any party subsequently applying under Section 9(4) of the Insecticides Act or desirous of conducting efficacy studies , they need to follow the CIB approved protocol, being the method adopted by the first applicant under Section 9(3) of the said Act . Under the law, bioefficacy of the product is of prime importance as they determine the intended purpose of usage of the product. As per the CIB guidelines, bio-efficacy test on the proposed formulations should be conducted under Indian conditions minimum on two trials in each of three national laboratories viz., Shriram Institute for Industrial Research, Delhi; Central Insecticide Laboratory, Faridabad; National Collateral Management Services Limited, Hyderabad. CIB proposes products such as mats/coils could also be evaluated inside the Peet Greedy chambers against caged mosquitoes and the knock down effect is to be recorded at different intervals(Section 1.10 section E).Though Liquid vaporizer are not mentioned but they belong to same category of household insecticide and hence it is implicit that they need to be carried out in a Peet Grady Chamber. Reference may also be made to Rules 19(3), 19(4) and 19(5), which read as under:
(3) The label shall contain in a prominent place and occupying not less than one-sixteenth of the total area of the face of the label, a square, set at an angle of 45 (diamond shape). The dimension of the said square shall depend on the size of the package on which the label is to be affixed. The said square shall be divided on which the label is to be affixed. The said square shall be divided into two equal triangles, the upper portion shall contain the symbol and signal word specified in sub-rule (4) and the lower portion shall contain the colour specified in sub-rule (5).
(4) The upper portion of the square, referred to in sub-rule (3) shall contain the following symbol and warning statements -
(i) insecticide belonging to Category I (extremely toxic) shall contain the symbol of a skull and cross-bones and the word POISON printed in red:
The following warning statements shall also appear on the label at appropriate place, outside the triangle;
(a) KEEP OUT OF THE REACH OF CHILDREN
(b) IF SWALLOWED, OR IF SYMPROMS OF POISONING OCCUR CALL PHYSICIAN IMMEDIATELY;
(ii) insecticides in Category II (highly toxic) will contain the word POISON printed in red and the statement KEEP OUT OF THE REACH OF CHILDREN shall also appear on the label at appropriate place, outside the triangle;
(iii) insecticides in Category III (moderately toxic) shall bear the word DANGER printed in red and the statement, KEEP OUT OF THE REACH OF CHILDREN shall also appear on the label at appropriate place, outside the triangle;
(iv) insecticides in Category IV (slightly toxic) shall bear the word CAUTION.
(5) The lower portion of the square referred to in sub-rule (4) shall contain the colour specified in column (4) of the table below, depending on the classification of the insecticides specified in the corresponding entry in column (1) of the said table. TABLE Sl.No. Classification of the insecticides Medium lethal dose by the oral route (acute toxicity) mg./kg.body weight of test animals Medium lethal dose by the dermal route (dermal toxicity) LD50 mg./ kg./ body weight of test animals Colour of identification brand on the label 1 2 3 4 5 1 Extremely toxic 1-50 1-200 Bright red 2 Highly toxic 51-500 200-2000 Bright yellow 3 Moderately toxic 501-5000 2001-20000 Bright blue 4 Slightly toxic More than 5000 More than 20000 Bright green
10. From the above, it is clear that the classification of insecticides is done by the Central Insecticide Board on the basis of the insecticide falling under the category of Extremely toxic, Highly toxic, Moderately toxic and Slightly toxic and the category is known to the consumers by the colour of the label / identification band. This classification of insecticides and the corresponding colour of the identification band / label is known to all manufacturers of insecticides, including the 1st Respondent, and also to the consumers and the public at large, including the Respondents Nos.3 & 4.
11. The applicant states that apart from the colour of the identification band / label of the insecticides, which is a broad classification of insecticides, the other parameter for comparable products / insecticides would be the molecule or active ingredient used and the percentage of such molecule or active ingredient. This is provided under Rule 19(1)(iv) of the Insecticides Rules, 1971, which provides for certain particulars to be either printed or written in indelible ink on the label of the innermost container of any insecticides and on the outermost covering in which the container is packed to give the kind and name of active and other ingredients and percentage of each. In order to compare one insecticide with another, it is necessary to see that not only is the active ingredient the same, but also the percentage of the active ingredient is the same. Since the active ingredient and its percentage is printed on the label of the container, it is known to the manufacturers of insecticides as to the products which can be regarded as being comparable. If the active ingredient or molecule is different or in case of their being the same active ingredient or molecule, the percentage of such active ingredient or molecule is different, then the insecticides are not like products and, therefore, not comparable.
12. Another factor for comparing mosquito repellent liquid vaporiser is the net contents being identical in terms of Rule 19(1)(v) of the Insecticide Rules, 1971. It may be mentioned that mosquito repellent liquid vaporizer (45ml) cannot be compared with mosquito repellent liquid vaporizer (35ml).
CIB based WHO Guidelines as Test Protocol
13. It is significant to note that although there are no Indian standards for testing of mosquito repellent liquid vaporizers, the Central Insecticide Board has accepted and follows the WHO Guidelines as the test protocol. It may be mentioned that normally, the testing protocol of insecticides is published and available on the website of Central Insecticide Board. However, for liquid vaporizers, the Central Insecticide Board has approved formulations under Section 9(3) of the Insecticides Act on the basis of tests carried out by such applicants on the basis of WHO Guidelines, which should be considered as a protocol since such formulation is registered and used in India in terms of the Insecticides Act. Admittedly, the Respondents No.3 & 4 failed to adhere to and follow the WHO Guidelines for the purpose of testing of liquid vaporizers of different companies. This is without prejudice to the submission that the Respondents No.3 & 4 were not competent to test the liquid vaporizers of different companies.
CIB Approved Test Centres
14. The applicant states that the Central Insecticide Board in fact has a list of test centres where testing of mosquito repellents can be conducted. These test centres are as follows:
i) Haffkine Research Institute, Mumbai;
ii) Jai Research Foundation, Vapi, Gujarat;
iii)Indian Institute of Chemical Technology, Hyderabad;
iv) Indian Institute of Biotechnology and Toxicology, Padappai, Tamil Nadu;
v) Central Food Technological Research Institute, Mysore;
vi) National Institute of Communicable Diseases;
vii) Regional Research Laboratory, Jorhat;
viii) Central Insecticide Laboratory, Faridabad;
ix) Punjab Agricultural University, Ludhiana;
x)Vector Control Research Centre, Pondicherry.
xi) National Chemical Laboratory, Pune Range of Products under Brands
15. The applicant states that there are a range of mosquito liquid vaporizers products manufactured and sold under the brand Good Knight of the Applicant and All Out of the 1st Respondent. The range of mosquito repellent liquid vaporizers under the brand Good Knight are as follows:
(i) Silver Refill (45ml) - 45 nights - 0.88% Transfluthrin,
(ii) Silver Refill (45ml) - 90 nights- 2.4% Prallethrin and
(iii)Silver Refill (45 ml) - 60 nights -1.6% Prallethrin True copies of printed cartons of other Good Knight liquid vaporizers namely, (i) Silver Refill (45ml) - 45 nights - 0.88% Transfluthrin, (ii) Silver Refill (45ml) - 90 nights- 2.4% Prallethrin and (iii) Silver Refill (45 ml) - 60 nights -1.6% Prallethrin are filed herewith and marked as Plaint Documents Nos. 6, 7 and 8 respectively.
Huge Reputation of Good Knight
16. The applicant states that brand Good Knight including its product Good Knight Advanced Activ+ enjoy an All India reputation in the market and also a huge reputation and goodwill amongst consumers in India, being known for its quality and effectiveness. In an article titled - Good Knight trumps AllOut which appeared in the Business Standard on 23.02.2012, there is a reference to Good Knight Advanced Activ+ Liquid Vaporizer giving a competitive edge to the Applicant as compared to the 1st Respondent.
17. The applicant states that its brand Good Knight is also the registered trade mark of the Applicant under the provisions of the Trade Marks Act for the Household Pesticides which includes all categories of products and all variants within each category of the product. The sales of all products under the brand Good Knight including Good Knight Advanced Activ+ Liquid Vaporizer from 1996-1997 to 2011 (October) is given below:
Goodknight brand deetails Rs. Lakhs Year Sales A & P YTD Oct 2011 46087 8145 2010-11 66337 11089 2009-10 50866 8758 2008-09 45762 11578 2007-08 41388 9754 2006-07 37113 7247 2005-06 34291 7896 2004-05 31290 5325 2003-04 27972 4643 2002-03 24042 2042 2001-02 28825 4426 2000-01 23542 2812 1999-00 13885 1612 1998-99 8455 889 1997-98 13404 2122 1996-97 12752 1103 The applicant states that the total value of Good Knight Liquid Vaporizers and the market share for Good Knight Liquid Vaporizer from the year March2007 to Feb. 2012 based on a report of A. C. Nielson is given below:
Mosquito Menace
18. The applicant states that there was a serious problem faced by the consumers and the public relating to the mosquito onslaught especially during the evening hours where in most of areas there are swarm of mosquitoes biting the human beings. All the normal products available in the market were unable to address this problem.
Launch of Good Knight Advanced Activ+
19. In January 2007, the applicant introduced an innovative and technologically advanced product i.e. Good Knight Advanced Activ+. This product was based on the use of the dual heating principle for release of a formulation more when a consumer switches to booster mode to combat more mosquitoes as compared to the normal mode for few mosquitoes. A copy of the printed carton of Good Knight Advanced Activ+ (45ml) containing 0.88% Transfluthrin is filed herewith and marked as Plaint Document No.10.
20. This product of the Applicant was also advertised in order to inform and educate the consumers of its advantages and benefits, which would ultimately result in promotion of public interest and consumer interest. The Applicant craves leave to refer to and rely upon the said Advertisements issued by the Applicant Company in respect of Good Knight Advanced Activ+ at the time of hearing, if necessary.
Technologically Superior Product
21. The applicant states that Good Knight Liquid vaporizer is an innovative and technologically advanced product which was adjudged the product of the year and has resulted in no small measure to the market share of the Applicant increasing and overtaking the 1st Respondent after August 2012. The product is designed to release active ingredient continuously in a controlled fashion using a formulation and a heating device with a particular temperature. The active ingredients to repel mosquitoes used in such liquid vaporizers are basically synthetic pyrethroids. These pyrethroids require some heat energy to release the active ingredient in vapor form for efficacy. Advances in synthetic chemistry have led to produce improved synthetic pyrethroids in terms of efficacy and safety. The first molecule that are used in the liquid vaporizers are allethrin followed by d-allethrin, Prallethrin and Transfluthrin. These molecules have different potency in terms of repelling and killing efficacy. Their potency is dependant upon their volatility of the molecule as well as the strength that is used in each formulation. Depending upon the potency the formulators use different strength to provide a minimum protection for mosquito bite. Transfluthrin is more potent than other molecule used in liquid vaporizer such as Prallethrin, and less concentration is sufficient to provide a better efficacy.
22. The advances in molecule development, also addresses safety in terms of toxicity. The safety is determined by the toxicity values especially, the dermal toxicity, oral and inhalation toxicity values. Transfluthrin as a molecule is slightly toxic (green triangle) compared to Prallethrin which is classified as mildly toxic(blue triangle) based on the toxicity values acceptable by the regulatory authorities.
All Out launches inferior products
23. The applicant states that after the launch of Good Knight Advance Activ+ by the Applicant, the 1st Respondent in or around 2008-09 introduced All Out Power Slider (45ml) containing 0.88% Transfluthrin(using exposure of wick towards and away from the heater for booster and normal release respectively) which was not as effective as the Applicants product followed by All Out Total with 1.6% Transfluthrin -35 ml- 45nights. The 1st Respondent also tried to advertise its product, All Out Power Slider, in different media.
Reasonable Duty of Disclosure of full and complete facts
24. The applicant states that the Respondents No 1 & 2 while issuing the comparative advertisements have a reasonable duty to ascertain the full facts and to disclose the full and complete facts material for the advertisements including the details of the products of different manufacturers sought to be compared so that it is clear that the comparable products have been tested, scored and ranked. The aforesaid advertisement fails to do so and attacks the Good Knight brand (not any particular product) by ranking it No. 4 for the biological efficacy test conducted by the 3rd Respondent and published by the 4th Respondent in a magazine Consumer Voice. The failure to disclose the details of the products of different manufacturers sought to be compared, tested, scored and ranked leads to a fundamental flaw which strikes at the very basis of the advertisement, which is patently disparaging to the Applicant herein.
Breach of duty of Reasonable Care
25. The applicant states that the Respondents have failed to observe basic and reasonable care, which is evident from the following:
(i) Only test centres approved by Central Insecticide Board (CIB) can test the products for biological efficacy and the 3rd Respondent lacking in expertise and approval, has wrongly proceeded to test the products and the 1st and 4th Respondents have mechanically printed and published the same in the advertisement and magazine respectively;
(ii) The CIB approved test protocol based on WHO Guidelines has been ignored and Malaysian Standards have been adopted though not followed in totality by Respondent and the 1st and 4th Respondents have mechanically printed and published the same in the advertisement and magazine respectively ;
(iii) The exact details of 10 products tested, scored and ranked have not been disclosed at the time of letter dated 28.12.2011 and letter dated 6.2.2012 sent by Respondent No.3 or even in the article in the magazine printed and published by the 4th Respondent or the advertisement issued by the 1st and 2nd Respondents;
(iv) The Chart on Pg 11 of the article discloses that the 3rd Respondent has arbitrarily designed a system of assignment of weightages to so called parameters and based thereon has proceeded to test, score and rank them, which is relied upon in the magazine and advertisement by the Respondents respectively ;
(v) Respondents Nos. 3 and 4 have ignored the active ingredient used in a product, the percentage of active ingredient used, level of toxicity displayed by the colours on the printed cartons of the products and the pack size, which are factors to be kept in mind for the purpose of determining whether the products are comparable or not. The comparison of incomparable products in the tests have been relied upon in the magazine and advertisements by the other Respondents.
Attack on Good Knight Advanced Activ+ liquid vaporizer
26. The applicant states that the following facts and visual representations make it clear that the technologically advanced Good Knight Advanced Activ+ liquid vaporizer is being attacked:
(i) the plastic bottle with the grey cap ranked No. 4 in the newspaper advertisement;
(ii) the plastic bottle with the grey cap ranked No. 4 shown on Pg 7 of the said article;
(iii) the plastic bottle with the word Good Knight Advanced also shown on Pg 7 of the article;
(iv) the reference to 45 ml size and MRP of Rs 54 in the chart at Pg 11 of the said article.
Jago Grahak Jago-Government Approval
27. That the Respondents are seeking to mislead the consumers and the public at large using the words Jago Grahak Jago and calling upon consumers to awaken by using the words Jago Grahak Jago! twice prominently at the top of the advertisement and highlighting that All Out has been ranked as the most efficient liquidizer in biological efficacy by Consumer Voice and showing the magazine Consumer Voice and the table on Page-7 depicting the bottles of mosquito repellent liquid vaporizers with their respective rankings and calling upon consumers to Choose Wisely. The misleading impression sought to be conveyed is that the advertisement has the specific approval of the Government and its Ministry of Consumer Welfare who repeatedly uses the same slogan in various campaigns so much so that the slogan is synonymous with the campaigns of the Ministry of Consumer Welfare.
Comparison of Incomparables
28. Notwithstanding the above, Respondent Nos.3 and 4 have proceeded to compare incomparables on all the aforesaid parameters in order to confuse the consumers and the public at large and in order to attack Good Knight Advanced Activ+ of the Applicant Company. While it is clear from the study referred to in the article appearing in the magazine of Respondent No.4 that Good Knight Advanced (45ml) has been tested, it is not clear as to which variant of All Out (35ml) has been tested. There is complete lack of transparency on the part of the Respondents to show the products which have been compared and tested in the said study are similar in nature.
Comparable Product- All Out Power Slider
29. In this connection, it may be mentioned that there are two variants of All Out (35ml) which are available in the market with different molecules and/or active ingredients namely, All Out Refill (35ml) with Prallethrin 1.6% and All Out Total (35ml) with Transfluthrin 1.6%. There is also All Out Power Slider Refill (45ml) with Transfluthrin 0.88%, as stated above. Copy of the printed carton of All Out Refill (35ml) is filed herewith as Plaint Documents No.13. A perusal of the aforesaid labels of All Out Refill and All Out Total clearly show that the sizes of both All Out products (35ml) are different and distinct from the size of Good Knight Advanced Activ+ (45ml). Further, the active ingredient in All Out Refill (Prallethrin) is distinct and different from the active ingredient in Good Knight Advanced Activ+ (Transfluthrin). Further, the percentage of active ingredients in both All Out Refill (1.6% Prallethrin) and All Out Total (1.6% Transfluthrin) are distinct and different from the Good Knight Advanced Activ+ (0.88% Transfluthrin). This shows that the two All Out Liquid vaporizers (35ml) are not comparable to Good Knight Advanced Activ+ of the Applicant. Thus, the only comparable product is All Out Power Slider on the following counts:
(i) Same pack size of 45 ml;
(ii) Same molecule i.e. Transfluthrin
(iii) Same % of Tranfluthrin;
(iv) Same MRP Rs 54
(v) Same level of toxicity evident from the same colour i.e. green.
The Applicant craves leave to refer to and rely upon tests conducted on Good Knight Advanced Activ+ (45ml) and All Out Power Slider Refill (45ml) which both contain Transfluthrin 0.88% at the time of hearing, if necessary.
No expertise for testing
30. The applicant states that Respondent No.3 does not have the requisite expertise to conduct tests to gauge the biological efficacy of mosquito repellents liquid vaporisers. Although Respondent No.3 has referred to the Insecticide Act and Rules, but, have failed to compare similar products of manufacturers for testing to see the biological efficacy. This shows the complete lack of even basic knowledge for the purpose of testing products for biological efficacy.
Not CIB Approved Test Centres
31. The applicant states that from the above list of Central Insecticides Board approved test centres given in paragraph 15 above, it is clear that Respondent No.3 & 4 are not approved test laboratories / test centres by Central Insecticide Board and consequently, were not competent to conduct any tests. Further, none of the aforesaid test centres are NABL accredited labs and the reference to NABL by the Respondent No. 3 is misconceived and irrelevant.
Reference to NABL Accredited Labs - False
32. Respondent No.3 has tried to unsuccessfully establish its bona-fides by referring to the tests having been conducted in an independent NABL accredited test laboratory referred to in letter dated 28.12.2011 addressed to the Applicant Company. In this connection, it may be pointed out that NABL accreditation is given to a laboratory on the basis of its capability to perform tests / calibrations and provide accurate and reliable results. A laboratory may apply for accreditation from as little as one to as many tests / calibrations, provided it is performing these in accordance with NABL criteria. It is significant to note that the official website of National Accreditation Board of Testing and Calibration Laboratories, the approved lab is listed under the section Testing and Biocides. The list of approved laboratories by NABL under the category Pesticide and Insecticide, are Shriram Institute for Industrial Research, Delhi; Central Insecticide Laboratory, Faridabad and National Collateral Management Services Ltd., Hyderabad. It is significant to note that the NABL accredited laboratory has not been authorized to conduct the bio-efficacy test of liquid vaporizers and therefore, the reference to NABL accredited test laboratory made by Respondent No.3 is clearly misleading and mischievous.
33. That the Respondent has admittedly not followed the CIB approved protocol and has in fact claimed to have followed the protocol under Malaysian Standards. The parameters for tests, the Malaysian method, and the anomalies in test method used by the 3rd and 4th Respondents with regard to Malaysian method are set out in the chart given below:
Parameter Malaysian test method Consumer voice test method published in the Magazine Anomalies in test method used by Consumer voice with regard to Malaysian test method.
Knock down Paralysis of an insecticide which is described them to fall down and remain in state of incapable movement apparently dead % of insects knocked down at 40 min Not mentioned Total number of knock down of mosquitoes for maximum 20 min No clear cut definition is mentioned on the observation (Malaysian standard Section 3.1) Measured for 20 min as against 40 min (section 6.2.3 of Malaysian standard) Test Insect Laboratory cultured sucrose-fed adult female mosquitoes (Section 4 of Malaysian standard 1911:Part 1:2006 Wild species of mosquitoes are used for test Wild species are not recommended as they have mixed species and response also varies (Section 4 of Malaysian standard) Species of mosquitoes Aedes aegyptii species No species mentioned Same as above Section 4 of Malaysian standard Apparatus Glass Chamber with a dimension of 70cm x 70cm x 70cm Glass chamber (70x70x70cm) Complies No of test insect used 20 nos of mosquitoes used for test Not specified Results on % Knock down or KT50 may vary due to no of mosquitoes used for testing (Section 6.1.3 of MS 1911:PART 1:2006 Standard Reference standard product to be used for comparison (Section 3.3) No reference to standards is mentioned and used for testing the liquid vaporiser Results cannot be compared with variants it has to be compared with standard product (Section 3.3 MS 1911:Part 1:2006) Sample testing Liquid vaporizer is assessed for efficacy at 0% 50% and 90% of its claimed operating days (Section 6.2.1) Only 50% of its claimed operating days of the product is not reported for efficacy.
Selectively results of 50% of its claimed operating days are reported. (Section 6.2.1) Assessing time Suitable time intervals is used to record the mosquitoes knocked down for a period of 40 min No time interval mentioned.
Biological efficacy as per publication is assessed based on weightage. Method of scoring is not clear.
Knocked down % and efficacy assessed varies. Section 6.2.3.
Scoring relates to qualitative approach based on KT50 or % knocked down.
Comments on Article in Consumer Voice Magazine
34. The applicant states that the relevant Consumer Voice magazine (February 2012 issue) contained an article with the heading - Mosquitoes not at all swatted! (Page 7-11) and depiction of Good Knight Advanced Activ+ bottle with the grey cap and the word Advanced thereby removing any ambiguity as to the Good Knight product being attacked and targeted. It may be mentioned that the grey cap is a distinct feature of the said product as compared to other Good Knight products which have red caps.
34.1 The applicant states that at the top of Page-7 itself, there was a depiction of several mosquito repellent liquid vaporizers, including All Out, Knight Queen, Mortein, Maxo and Good Knight (Advanced) and a table giving the ranking of 1 to 5 to All Out, Maxo, Knight Queen, Good Knight and Mortein, along with a depiction of the respective bottles.
34.2 That on Page-8 of the article, there is a reference to a chemical known as d-Allethrin, which has become quite popular and used as an active ingredient of various compositions including vaporizers. The article also admits that standards for mosquito repellents for these types have not yet been formulated in India and consequently, a test programme based on Malaysian standards as against claims of manufacturers of products was developed.
34.3 By the said article, it was found that the test conducted for assessing the lasting time (duration for which liquidizer would last) showed Good Knight (479 hours) with the maximum lasting time, whereas All Out (336 hours) was found with minimum lasting time.
34.4 By the said article, the further test to assess the active ingredient showed that Knight Queen had the maximum percentage of active ingredient, followed by Mortein and All Out.
34.5 There was also a reference in a box on Page-8 of the article, which stated that value for money would be brand All Out as it costs Rs.48.15 being the lowest amongst the entire liquidizer range of products.
34.6 There is a contradiction on Page-9 of the article where it is stated that the test programme takes guidance on performance test from Indian as well as Malaysian standards to cover the additional test on biological efficacy. As stated above, the article Page -7 made it clear that standards for mosquito repellents are not yet formulated in India. Even the letter dated 28.12.2011 makes it clear that relevant guidelines were adopted from Malaysian standards for efficacy test.
34.7 The test was conducted in an air-conditioned environment at a temperature of 24-28 degrees centigrade and relative humidity of 55-75%, in a glass chamber (Perspex transparent glass 70 X 70 X 70 cm.) with approximately 20 wild sucrose-fed mosquitoes, where liquidizer was released for maximum 20 minutes. The total number of knock-down of mosquitoes was observed. The process was replicated at least three times on each sample.
34.8 At Page-11, there is a chart which shows the biological efficacy test results out of 50, All Out was 41.1, Maxo was 44.6, Knight Queen was 43.5, Good Knight was 41 and Mortein was 36.7. This score of 41 given to Good Knight i.e. 82% was much lower than the score of 91% given in the test result forwarded by Respondent No.2 by letter dated 28.12.2011.
35. The table used for assessment of scores amongst a range of liquid vaporizers is highly arbitrary and flawed. Weightages have been assigned for various attributes on an arbitrary basis without any reasoning.
36. It is significant to note that All Out scored 19.91 on the parameter of lasting time and even though it was supposed to be the lowest lasting time (336 hours) as per Page-8 of the article, yet Knight Queen (445 hours) was found to be the lowest score of 19.77, thereby showing a contradiction between the article and the chart in the article.
37. The chart on Page-11 also showed that the active ingredient in All Out was lower than its declaration on the label of the pack and therefore, a score of 14.81 was given to All Out. Despite having the lowest lasting time and its active ingredient not being in accordance with the declaration on its label, both the biological efficacy test and the overall score shows All Out to be the clear winner.
38. It is submitted that the 3rd Respondent has made conflicting statements in different communications / magazine regarding the test protocol followed by it for testing of mosquito repellent liquid vaporizers for biological efficacy test. By letter dated 28.12.2011, the 3rd Respondent stated that test parameters of the programme were adopted from relevant Indian standards and relevant guidelines were adopted from Malaysian standards for efficacy test. On Page-8 of its article, the 3rd Respondent admitted that standards had not yet been formulated in India and test programme was based on Malaysian standards as well as against claims of manufacturers of products. On Page-9 of the article, it was stated that test programme was finalized after taking guidance on performance tests from Indian as well as Malaysian standards to cover the additional test on biological efficacy.
39. The article at Page-9 clearly states that the test was conducted with approximately 20 wild sucrose-fed mosquitoes. In contrast, the Malaysian standard stipulates laboratory reared mosquitoes and further provides that only Aedes species alone are to be used. It is significant to note that the study by the 3rd Respondent did not mention any species or strain of mosquitoes which were used for its study. From the above, it is clear that the Malaysian standards have not been followed as is admitted from the reference to wild sucrose fed mosquitoes. In this connection, reference may be made to two letters both dated from NCL and Haffkines replying to the Applicant s enquiry and confirming the type of mosquitoes, the age , the gender is to be used by a party applying under Section 9(3) of the said Act.
40. It is significant to note that the measurement of efficacy when liquid volume is reduced by 50% is as per Malaysian protocol. However, as per letter dated 28.12.2011, the 3rd Respondent states that liquid portion is reduced by approximately 50%, thereby showing that even the Malaysian protocol was not followed by the 3rd Respondent in totality and in a scientific manner, but rather in a unscientific manner and on a rough-and-ready basis. The 3rd Respondent has also failed to follow the Malaysian protocol which stipulates that the test is to be conducted at 0% (initial operation), 50% and 90% of its claimed operating days.
41. Without prejudice to the above, as stated above, it is submitted that the Malaysian protocol is not relevant in India, where the manufacturers adopt a CIB accepted modified WHO Guideline for bio-efficacy measurement. Manufacturers follow the said protocol to manufacture and market their products which require registration from CIB.
42. From the study conducted by the 3rd Respondent, it is clear that Good Knight Advanced is being compared to All Out 35ml, though it is not clear whether All Out with 1.6% Prallethrin or All Out with 1.6% Transfluthrin are being compared. It is submitted that the said comparison is completely wrong and incorrect, particularly since the absolute amount of Transfluthrin content in All Out is much higher than its content in Good Knight and, therefore, it would amount to a comparison of incomparables and also an unfair comparison.
43. The applicant states that the basic and fundamental objections to the study conducted by the 3rd and 4th Respondent as per its publication in magazine are as follows:
(i) The 3rd Respondent has failed to follow the CIB accepted test protocol which is relevant to the Indian context;
(ii) The unscientific study conducted by the 3rd Respondent, fails to make it clear as to whether Indian standards or Malaysian standards or both or partial Indian and partial Malaysian standards have been followed, and merely proceeds to disparage the products of the Applicant Company.
(iii) As stated above, the study conducted by the 3rd Respondent has tested approximately 20 wild sucrose-fed mosquitoes, which are not referred to in the Malaysian protocol. Aedes species alone are to be used as per Malaysian standards.
(iv) The study also fails to follow the Malaysian protocol which stipulates that the test is to be conducted at 0% (initial operation), 50% and 90% of its claimed operating days.
(v) The article in the magazine fails to take note of the fact that the study does not indicate whether Good Knight Advanced is being compared to All Out with 1.6% Prallethrin or All Out with 1.6% Transfluthrin. In any event, the said comparison is unfair since the content of the active ingredient is far higher in All Out as compared to Good Knight. This clearly amounts a comparison of incomparables.
(vi) It is also not clear as to on what basis the 3rd Respondent has arbitrarily assigned weightages to different parameters to arrive at the overall score.
(vii) It is also not clear as to on what basis the 3rd Respondent can claim that All Out (35ml) costing Rs.48.15 can be compared with Good Knight (45ml) priced at Rs.54.00 or Maxo (45ml) and Knight Queen (45ml) priced at Rs.49.00 and Rs.66.00, respectively. Only Mortein (35ml) was comparable in terms of pack-size costing Rs.49.00.
(viii) Although Good Knight Advanced (45ml) does not indicate on its pack or in the leaflet the lasting time, the same is not indicated in the test results forwarded by letter dated 28.12.2011, where it was stated that lasting time was provided.
44. Respondents No.1 and 2, while being fully aware of the fact that CIB accepted test protocol of WHO Guidelines have to be followed for testing bio logical efficacy of mosquito repellent liquid vaporizers in India, has proceeded to refer to and rely upon an unscientific study conducted by the 3rd Respondent, where it is not clear as to whether Indian standards or Malaysian standards or both or partial Indian and partial Malaysian standards have been followed; incomparable products have been chosen, tested, scored and ranked; an arbitrary assignment of weightages has been given to so called factors; the so called testing has not been done at CIB approved test centres thereby showing basic and fundamental flaws rendering the test unreliable and not credible. Yet Respondents Nos 1 & 2 proceeded to advertise its products by disparaging the products of the Applicant Company. This shows malafides on their part in issuing the newspaper advertisement on an All India basis knowing fully well the glaring and patent deficiencies in the test by comparing incomparable products, not following CIB approved test protocol, not following even the Malaysian protocol. This also shows a certain degree of collusion or conspiracy between Respondents Nos 1 &2 and Respondent Nos 3 &4 to target the Good Knight brand and the Good Knight Advanced Activ+ Liquid Vaporizer in particular. This is an unfair method of advertising adopted by the Respondent No.1 & 2 to seek to attack, disparage, discredit the Applicants brand and product by indulging in unhealthy and unfair tactics. Being fully aware of the declarations made by the manufacturers including Applicant, the Respondents irresponsibly, recklessly, negligently and deliberately proceeded to make a mockery of a comparison of incomparable products thereby causing loss to the brand, reputation, goodwill, products of the Applicant particularly Good Knight Advanced Activ+,
45. The advertisement fails to take note of the fact that the study does not indicate whether Good Knight Advanced is being compared to All Out with 1.6% Prallethrin or All Out with 1.6% Transfluthrin. In any event, the said comparison is unfair since the content of the active ingredient is far higher in the said All Out products as compared to Good Knight Advanced Activ+ Liquid Vaporizer. This clearly amounts a comparison of incomparables.
46. The Applicant Company has recently forwarded for testing to National Chemical Laboratory both Good Knight (45ml) 0.88% Transfluthrin Refill with All Out (35ml) 1.6% Prallethrin Refill and the results showed that Good Knight had better efficacy in terms of KT-50 and Mortality (%) as compared to All Out in both test methods i.e., Malaysian method and CIB accepted guidelines for bio-efficacy testing for vaporizers. It is significant to note that even when two species of mosquitoes (Culex and Aedes) were used, Good Knight performed better in KT-50 and Mortality (%).
47. The Applicant states that the dominant theme of the offending All Out advertising campaign is to make false and misleading facts with a view to disparage the Applicant product, namely Good Knight Advanced Activ+ and to project and represent to the gullible consumers and the public at large that All Out Mosquito Repellent Liquid Vaporizer alone (35ml) is effective at killing mosquitoes having been ranked #1 by Respondent No.3 & 4. Such an attempt to run down other mosquito repellent liquid vaporizers, including the product of the Applicant, by unfair means and by making dishonest claims with a view to boosting the sales of the 1st Respondents products clearly amounts to malicious falsehood and slander of goods of its competitors, including those of the Applicant.
48. The Applicant states that the Respondents have launched the offending advertising campaign with the sole objective of disparaging / discrediting Good Knight Advanced Activ+ of the Applicant, which is its rival and competitor. The content of the offending advertising campaign, the manner of commercials and the overall message are misleading and undermine and target the Applicants product by clever and tricky advertising to induce, lure and wean away its consumers which will cause irreparable harm and injury to the Applicant.
49. The Applicant states that the Respondent's offending advertising campaign takes unfair advantage by making false and misleading claims to consumers and thereby disparages the Applicants product, namely Good Knight Advanced Activ+. This is done with a dishonest intention and malicious motive and hence is contrary to honest practice.
50. The Applicant states that by disparagement of the Applicants product based on false and misleading claims, the offending advertising campaign is likely to create doubt in the minds of the consumers that the mosquito repellent liquid vaporizer of the Applicant is least effective in killing mosquitoes in comparison with the product of the 1st Respondent and such doubt and suspicion created by the advertising campaign is likely to be detrimental to the distinctive character of the brand Good Knight and is likely to adversely impact its reputation and goodwill built over decades.
51. The Applicant states that the offending newspaper advertisements are targeted at usurping the market share of the Applicant in the mosquito repellent liquid vaporizer segment by harming the reputation of the Applicants product by resort to injurious falsehood. The Applicant states that the content of the offending advertising campaign and the overall message conveyed to consumers and readers is that the Applicants mosquito repellent liquid vaporizers are inferior and the Respondents product is superior. The offending advertising campaign seen in its entirety denigrates and defames the Applicants product by making false and misleading representations.
52. The Applicant states that the common thread passing through the offending advertisements is to tarnish the reputation of the Applicants product by resorting to commercial disparagement. The Applicant states that the offending advertisements apart from being false and misleading are also against public health and consumer interest.
53. The Applicant states that the offending advertisements taken as a whole has targeted the Applicants product and by recourse to commercial disparagement, the 2nd Respondent has lowered the reputation of the Applicants product by making an impact on readers and potential buyers which will have a bearing effect on the sales of the Applicants product and will cause irreparable loss and injury to the Applicant. The Applicant states that apart from the loss likely to be caused to the sale of the Applicants Good Knight Advanced Activ+, the reputation assiduously built by the Applicant in respect of its Good Knight Brand has been tarnished by the Respondent No.1 by the impugned advertisements, entitling the Applicant for also special damages. The Applicant tentatively values the special damages suffered by it for the purpose of court-fee at Rs.25 lakhs, and reserves its liberty to claim the actual damage sustained by it by virtue of the impugned advertisements.
54. The Applicant states that in law the product of a party does not have to be directly disparaged and defamed and even an insinuation is sufficient reason to injunct a party such as the respondents. The Applicant states that in the facts and circumstances, it is evident that the slander and disparagement by the 1st and 2nd Respondent is clear and brazen as it seeks to discredit and lower the reputation of the Applicants product, which is the ultimate objective of the offending advertising campaign. The Applicant is thus entitled to an injunction as the 1st and 2nd Respondents have created a doubt in the minds of the consumers in so far as the Applicants product are concerned. This will result in irreparable loss and injury since it will have an impact on the consumers which, in turn, will affect sales of its product and its market share and the reputation of the Applicants product.
55. The applicant states that irreparable loss and injury would be caused to the Plaintiff unless an injunction is granted to restrain the respondents from publishing the offending advertisements and the same cannot be compensated in money terms or by way of damages which will not be an adequate remedy.
56. The applicant states that the balance of convenience is in favour of the applicant as incalculable loss and injury will be caused to the applicant, by way of loss of market share based on false and misleading representations resulting in disparagement of the applicants product unless an injunction is granted against publishing the offending advertisements.
57. It is, therefore, prayed that this Honble Court may be pleased to grant :
A. Ad-Interim injunction restraining the Respondents, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them from issuing/ circulating/ publishing the offending advertisement/s [the theme of which is titled - Jago Grahak Jago!], filed as Plaint Document No.1 or in any other similar advertisement in any other media, which is filed as Plaint Document No.3 or any article in magazine published in Consumer Voice filed as Plaint Document No.2 which refer to the test conducted and the scores and/or ranking given thereby seeking to disparage / denigrate the Applicants products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit;
B. Ad-interim injunction restraining the Respondents, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them from in any manner publishing/ circulating/ advertising the article or the tests conducted and ranking given by the 3rd and 4th Respondent in their magazine or any other similar advertisement by referring to and relying upon the test report of the 3rd and 4th Respondents or any other advertisements which seek to disparage / denigrate the Applicants products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit;
C. Ad-interim injunction restraining the Respondents, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them, from conducting the tests for biological efficacy for liquid vaporizers or any other product which seek to disparage / denigrate the Applicants products by making false and misleading representations either directly or indirectly or in any other manner whatsoever, pending disposal of the suit;
D. Ad-interim injunction restraining the Respondent, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them from making any false, misleading and disparaging representations or from making any slanderous statements / representations in respect of the Applicants products, pending disposal of the suit;
E. Ad-interim injunction restraining the Respondents, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them from redistribution / copying and/or distribution of the article published in Consumer Voice Magazine February 2012 Issue or any other similar material, including point of sale material like danglers, posters, etc. to any agent, trader, distributor or any other person, whatsoever, pending disposal of the suit.
F.Pass such further or other orders as this Honble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.
13. The reading of the affidavit shows, that in the affidavit, five reliefs have been claimed in all the affidavits.
14. Counter has been filed on behalf of defendant nos.3 & 4, which reads as under:
1.I am the Secretary and Chief Operating Officer of the 3rd respondent/defendant Society. I am award of the facts and circumstances of the case and I am Competent to swear this affidavit on behalf of the 3rd and 4th respondent herein.
2.I deny each and every fact, averment and submission made in the Application filed by the Applicant/Plaintiff unless specifically admitted herein. Nothing in the present Counter affidavit may constitute an admission unless specifically admitted.
3.I submit that, the Respondent/Defendant No.3 Society is a not-for-profit society devoted to consumer education and has been, since its registration in 1999, involved in the comparative testing of consumer products and evaluation of services for consumer education on the basis of transparent and scientific methodology without bias to any company's product. The detailed methodology is explained and filed as Document No.1.
4.I submit that, Respondent/Defendant No.3 Society conducts activities for consumer education which is supported by World Health Organization, Consumers International, United Nations, Ford Foundation, WINROCK-International, Food and Agriculture Organization, USAID, World Bank, Climate Works, Clasp / REEP, International Consumer Research & Testing, ECO Asia, GIZ/ASEM. Respondent/Defendant No.3 is also actively associated with standard making bodies like Bureau of Indian Standards (BIS), Bureau of Energy Efficiency (BEE), Quality Council of India (QCI), STQC, ISO, COPOLCO, CODEX. All the activities conducted by Respondent/Defendant No.3 are not for profit and only for consumer education and awareness.
5.I submit that, in addition to support from the various departments of the Government of India, some of the technical projects pursued by Respondent/Defendant No.3 is given support by international agencies and the same are as listed below. This shows the Respondent/Defendant No.3's technical capability and expertise in evaluating products and services from the consumer point of view:
(a) SARI/E South Asia Regional Institute for Energy 3 Joint studies on promotion of energy efficiency & standards & labeling Sri Lanka & India, Pakistan USAID/Winrock.
(b) Mitigating Climate Change Implementation of India's (collaborative labeling & appliance standard program) Under Asia Pacific partnership of US.
(c) Technical support to energy efficiency S&L in India from: REEEP (Renewable Energy & Energy Efficiency Partnership)
(d) IRG Eco-Asia Clean Development Program USA Testing & Promotion for Quality & Mercury contents of popular models of CFLs of world project
(e) Testing Benchmarking for Energy Labeling for various Washing Machines under with PWC for BEE's, Standards and Labeling Consultation project.
(f) Promotion and outreach of Standards and Labeling and Fuel Efficiency Program; supported by Climate Works Founation.
6.I further submit that, Respondent/Defendant No.3 regularly does comparative testing of products and in the methodology followed by Respondent / Defendant No.3 in comparative testing of the product, it would be relevant to highlight the following process in this regard:
Respondent/Defendant No.3 has been testing branded products/services at Government accredited laboratories/through market surveys. Respondent/Defendant No.3 regularly does user test through popular brands of any product category through panellists. Market surveillance is done of different product categories to guide consumers. Respondent/Defendant No.3 also does economy parameter tests and Compares Inherent Quality & Performance with Price.
These test / evaluation results are given to Editorial for converting these to reader friendly language in Consumer VOICE magazine and then sent to subscribers on 3rd of every month to draw Public Attention to Unsafe Goods and Unfair Trade Practices.
Standards of these Products are shown thereby increasing Public Awareness on Products.
Grants support from Ministry of Consumer Affairs, Government of India towards mainly testing of products with meagre amount towards dissemination of test results.
7.I submit that Respondent/Defendant No.3 being a member of over 3 dozen technical committees of Bureau of Indian Standards (BIS), provides consumer inputs to BIS to upgrade, revise and formulate the standards according to the current consumer expectations. For instance, in the case of Tubular Fluorescent lamps (TFLs) or T-5 energy saving lamps where Respondent/Defendant No.3 tested ten most selling brands even when there was no available Indian standard, the Respondent/Defendant No.3 followed the international standards and got accepted as part of the national standards in the technical committee meeting ET-23 of BIS. Similarly following are few cases where the national standards were revised based on the product test findings done by the Respondent/Defendant No.3 Society:
i) Respondent/Defendant No.3 helps regulatory authorities like PFA (now FSSAI), CPCB, MoEF, for taking necessary action against the non-conforming products.
ii) Respondent/Defendant No.3 has contributed its test data to the Bureau of Energy Efficiency (BEE), Government of India for energy rating and benchmarking of over one dozen products for star rating plan. BEE has always appreciated and acknowledged the contribution of the Defendant No.3 where it has helped BEE's in setting the national energy labeling standards of various appliances.
iii) Respondent/Defendant No.3 has also tested the products under a pilot project where the five categories of products were tested for verifying the eco-mark on product specific requirement. The study was supported by the Ministry of Environment & Forest (MoEF).
8.I further submit that, the Respondent/Defendant No.3 Society follows a due process in comparative testing of consumer products. Each comparative test takes 9 to 12 months from conception to publication. The following figure A and B describes the due process for comparative testing used by Respondent/Defendant No.3 for all products including the test called in question in this Application. There are 15 steps in the due process as shown in Figure B below.
Figure. A Work Flow Diagram User Test Test of products Test of Services Market Survey ? ??? ?????? ???? ?????
Product Lab Test Research Agency Products ? ?? ????? ????? ???? Distribution to panelists Test Results (Technical) Test Results Report ? ?? ?????? ???? ????
Report via Questionnaires ? Editorial & Technical ??????????????????????
???? ?
??Printing ?
?Distribution of Magazine Figure.B: The Comparative Testing process Comparative Product Testing Process (Below process is shown in oval shape form in the affidavit)
1. Development of Test Program
2. Test Program to Institutions
3. Test Program to Manufacturers
4. Lab finalize with Test Charges
5. Market
6. Ombudsman Committee Meeting
7. Samples Purchase
8. Masking & Coding
9. Samples to Laboratory
10. Lab Testing & Monitor
11. Lab Report Evaluation
12. Test Results to Manufacturers
13. Clarification to manufacturers
14. Test Results Grading & Rating
15. Publish Test Report & Dissemination
9.I submit that, Defendant No.3 have tested more than 125 consumer products, the details of the list of products covered which includes that of the Applicant/Plaintiff is filed as Document No.2. In one case, the Applicant/Plaintiff have asked Respondent/Defendant No.3 for retest of their product which was done in their presence and the retest proved to be as per accepted standards and the Applicant/Plaintiff had appreciated the testing of their product. This shows that the testing of Respondent/Defendant No.3 is without any bias or prejudice and is done purely in consumer interests and not for any profit or ulterior motive as alleged by the Applicant/Plaintiff.
10.I submit that, the Respondent/Defendant No.3 has always followed the policy of transparency and some of the recent cases of the Respondent's work are mentioned below:
a. In the case of comparative testing of direct cool refrigerators in 2008, Applicant/Plaintiff's brand was not meeting the requirement as declared. The Applicant/Plantiff's group of companies asked for a clarification on the "storage volume" where they did not agree and suggested for retest in their presence in the NABL laboratory. The Respondent/Defendant No.3 agreed to Applicant/Plaintiff's suggestion and got tested their brands in the presence of Plaintiff's senior official. The result of retest was matching with the earlier test of Respondent/Defendant No.3 and the applicant dropped their objections.
b. Another instance of Respondent/Defendant No.3's transparency in test methodology is relating to the vanaspati ghee tested in 2011 where Respondent/Defendant No.3 shared test program with the Plaintiff's company. The Plaintiff vide Email dated 17.02.2009 showed their inclination on knowing the result of the test conducted. A copy of the email dated 17.02.2009 is filed as Document No.3.c. There has been also a case of the comparative testing of frost free refrigerators in the year 2008 where the Respondent/Defendant No.3 conveyed the test results to the Applicant/Plaintiff group of companies who responded with their test data and for some corrections. The queries of the Applicant/Plaintiff were addressed by the Respondent/Defendant No.3 appropriately. This shows that Respondent/Defendant No.3 has always been open and responsive to all manufacturers including the Plaintiff's suggestions about the test methodology followed by it. The email correspondence are filed as Document No.4.
11.I further submit that, the comparative tests conducted by the Respondent/Defendant No.3 Society have been carried out over several years and at present, they are carried out under a Memorandum of Understanding with the Union Ministry of Consumer Affairs, Food and Public Distribution which was signed in 2005 wherein under the guidelines framed by the Sathi Nair Committee recommendations, the Comparative Testing of branded consumer products are carried out independently by VOICE Society in accredited laboratories and their results are disseminated for consumer education.
12.I submit that, in the year 2005-06, Respondent/Defendant No.3 Society tested 3 brands of liquid vaporizers including 'Good Knight' of the Applicant/Plaintiff and 'All Out' of Respondent/Defendant No.1. The test methodology was accepted and not objected by the Applicant/Plaintiff. It is noteworthy that the Applicant/Plaintiff in their email dated 8 June 2006 appreciated the work of Defendant No.3. It is worth noting that the test methodology was same which has now been adopted by Defendant No.3 and now the Plaintiff cannot approbate and reprobate and challenge the basis of test. The above description of the activities of the Respondent/Defendant No.3 would show that the task of comparative testing of products and evaluation of services is not new to the Respondent/Defendant No.3. The work has been acknowledged and appreciated by the consumers and manufacturers including the Applicant/Plaintiff. A copy of the email dated 08.06.2008 is filed as Document No.8.
13.I submit that Respondent/Defendant No.3 has entered into Memorandum of Understanding with various Government Organizations as there is a need for sustained testing of products and services disseminating the result thereof for the benefit of Consumer. Few of the Memorandums of Understanding are with the Ministry of Consumer Affairs, Food and Public Distribution, Government of India, dated 26 October 2005, MOU dated 14 July 2009, and MOU dated 18 November 2010, and the same are filed as Document No.10. It is further stated these MoUs provide for comparative testing of consumer products in a transparent and unbiased manner in terms of norms laid down in the recommendations of Sathi Nair Committee of Government of India in 1999.
14.I submit that, the assignment of Comparative Testing of Products and Service Evaluation was given by the Government of India after considering the Respondent/Defendant No.3's competence and credibility in the testing field which has remained unchallenged by the stakeholders, manufacturers (including the Plaintiff) and appreciated by the consumers at large. Needless to emphasize the comparative testing of consumer products in view of scientific and fast technical changes is imperative to educate the consumers. A report of Sathi Nair Committee on comparative testing of CTV Receiver issued by the Department of Food and Civil Supplies, Government of India is filed as Document No.11.
15.I submit that, the test report under challenge is based on test results carried out in a National Accredited Laboratory namely Arbro Pharmaceuticals Limited. Only factual information has been given for consumer awareness. Considering the retail prices consumers are asked to pay so that they can have choice of brands to suit their pocket relative to performance of the product. The test protocols are adopted after consultations with various stakeholders in the Ombudsman Committee Meeting under Retd.Chief Justice of India, Shri P N Bhagwati who has been the Ombudsman for comparative testing since its inception in 1992. Hon'ble Retd.Chief Justice of India Shri P.N.Bhagwati has also overseen the present test in his capacity of ombudsman. The findings of the test results are for general consumers and are in public domain. Hence, reproducing the sae in advertorial form does not infringe any law.
PARAWISE REPLY
1.The contents of paragraph 1 of the Application are a matter of record and needs no reply
2.The contents of paragraph 2 of the Application are a matter of record and needs no reply.
3.The contents of paragraph 3 of the Application are wrong and vehemently denied. It is denied that the advertisement dated 15.03.2012 and 21.03.2012 are discrediting and/or disparaging. It is denied that the same has led to unfair trade practice. It is denied that the advertisement has led to slander of goods and/or malicious falsehood against Plaintiffs product. The allegation of the Applicant/Plaintiff about the unscientific, unreliably arbitrary tests conducted by Respondent/Defendant No.3 is absolutely baseless, motivated and slanderous. It is submitted that the Respondent/Defendant No.3 is a Society registered in 1999 under the Societies Registration Act, 1860 and working on no-profit basis. The Respondent/Defendant No.3 has been publishing a monthly magazine Consumer VOICE in English and Hindi and online. Respondent/Defendant No.3 Testing Procedure Details are filed along with this affidavit. The Respondent/Defendant No.3 has signed MOUs with the Ministry of Consumer Affairs, Food and Public Distribution, Government of India for Comparative Testing of Products and Service Evaluation. The MoUs provide for comparative testing of consumer products in a transparent and unbiased manner in terms of norms laid down in the recommendations of Sathi Nair Committee of Government of India in 1999.
In this connection it may be stated that in the year 2010 Defendant Nos.3 & 4 conducted tests of pesticides in fruits and vegetables and the results were published in Consumer VOICE magazine October / November 2010. The reports were also carried by some of the national dailies. Taking cognizance of the report in the newspapers the Hon'ble High Court of Delhi issued suo moto notice to the Union of India and the Government of NCT Delhi for filing their replies. In WP (C): 7495 of 2010 the High Court directed the concerned authorities to retest certain vegetables and submit their report. Now, on the direction of the Hon'ble High Court of Delhi, the Government of India has constituted a committee of senior officials and experts including outside scientists to formulate guidelines for usage of pesticides by the farmers. The matter is sub-judice.
4.That the contents of paragraph 4 are a matter of record and needs no reply.
5.That with regard to contents of paragraph 5, it is submitted that the Respondent/Defendant No.3 would like to state that the Applicant/Plaintiff was kept informed about the testing methodology from the beginning till the end and at every relevant stage as per our transparency procedure and, therefore, there was no intention of disparaging the Applicant/Plaintiff's Good Knight brand as alleged. It is stated Respondent/Defendant No.3 issued a letter dated 11.04.2011 on the Applicant/Plaintiff and enclosed a copy of the test methodology of liquid vaporizer for the Applicant/Plaintiff's comments. The Respondent/Defendant No.3 informed the Plaintiff that they are testing the Mosquito Repellant product used by the Consumers and the same is prepared by their technical specialists, and requested the Applicant/Plaintiff to study the test programme and forward their views if any. A copy of the letter dated 11.04.2011 is filed as Document No.12. It may be pertinent to point out that the Respondent/Defendant No.3 has sent a similar letter to Applicant/Plaintiff in 2005-06 when liquid vaporizers were tested and the Applicant/Plaintiff never raised any objection to the same methodology. The Plaintiff did not give their views from the beginning. The letter dated 28.12.2011 clearly states that the testing was carried out in an independent, NBL accredited test laboratory, wherein 9 other leading products were tested and the test parameters were mainly adopted from relevant Indian Standards and relevant guidelines were adopted from Malaysian Standards for efficiency test Document No.20.
6.That with regard to paragraph 6, it is submitted that after the tests are done, the Respondent/Defendant No.3 sent letter dated 28.12.2011 to the plaintiff wherein the test results of the Plaintiff's band was enclosed and sought for their comments. The Applicant/Plaintiff did not send any comments or objection and, therefore, Respondent/Defendant No.3 processed and published the results in its magazine, Consumer VOICE. This shows that Respondents/Defendant No.3 has acted in most transparent manner by sending the report prior to publication to all Companies whose products were tested. It is further relevant to state that Respondent/Defendant No.3 does not accept any commercial advertisements or commercial donations from the corporate houses in order to maintain the independent nature of its work. Further it is relevant to state that the defendant No.3 has sent a letter dated 6.2.2012 to the plaintiff and also to the manufacturers of the other brands whose products were tested requesting for the purchase of the said test report as the Respondent/Defendant No.3 incurs cost in testing of products, the test report of mosquito repellants was priced at Rs.50,000/- each so that the Respondent/Defendant No.3 can recover some of the costs this way. However, its purchase is not obligatory on the manufacturers of the products as is very clear from the language of the letter. A copy of these letters dated 06.02.2012 are filed as Document No.14 Extract of Arbro test report are filed as Document No.17.
7.That the contents of paragraph 7 are wrong and denied, and the Applicant/Plaintiff is put to proof of the statement made. It is denied that any one approached the Applicant/Plaintiff repeatedly asking them to purchase the said report.
8.That the contents of paragraph 8 are a matter of record and needs no reply. It is submitted that the CIB approved protocol based on the WHO guidelines has to be followed for testing of the bio-efficacy of the product. And based on this, an Applicant is given the approval license for manufacture and selling these primarily applies to the manufacturers of pesticides as environment, human and plant safety is involved.
9.That with regard to the contents of paragraph 9, it is submitted that the independent testing organization, such as Respondent/Defendant No.3, are expected to be familiar with the test methodology in India and the other countries (test methods already validated during 2005 testing) and has full liberty to test and follow methodology which can compare performance of different comparable samples. But as per the CIB test method as well as WHO guidelines only cover pesticides for farming use and coils and mats for domestic use and not liquidizers for mosquito repellants which were covered under the current tests. It may be mentioned that there are no national standards or methodology standards formulated by BIS and ISI Standards or CIB for liquid mosquito repellants. Hence in absence of a national test method, the Defendant No.3 has followed test method of Malaysia which is most suitable to the country, like India which has a tropical climate like that of Malaysia. This was the Respondent/Defendant No.3's second study of the bio-efficacy test method based on Malaysian standards. In the first study conducted in 2005-06, the test laboratory utilized was M/S Shri Ram Institute for industrial research, Delhi (as mentioned by the plaintiff) on the 3 category of mosquito repellants i.e.coils, mats and liquidizers in a glass chamber of the size 700x700x700mm. Since there is no established method either from CIB or WHO for liquidizers, it is always advisable and acceptable to use the method of another country where national standard body has already formulated scientifically validated the acceptable & appropriate test method. Thus, the Respondent/Defendant No.3 has, after consulting various organizations, has followed the Malaysian method whose test finding were accepted by all the companies including the Plaintiff during the previous study (2005-06) as well during the current test as no comment was received from them or any other manufacturer vide our letter dated 25.12.2011 where the plaintiff has also given the reference in the application. The specification for mosquito Electric Vapourising Liquid as per Malaysian Standard is filed as Document No.20.
10.That with regard to paragraph 10, it is submitted that as far as the insecticides used as active ingredient by the Applicant/Plaintiff or the other companies, the Respondent/Defendant No.3 has tested them for presence and qualification which was found to be, close to the same to their claims/values/quantity. But the Defendant No.3's main objective of testing was for the bio-efficacy test based on Malaysian methodology where the mosquito drop (knock-down) test was conducted. Hence irrespective of any active chemical used in the liquidizers as in the case by different manufacturer which use different ingredients, the laboratory judged the bio efficacy of the liquidizers and rated them. This is based on consumer mindset of using liquidizers for avoiding mosquito bites.
11.That with regard to paragraph 11, it is submitted that the Respondent/Defendant No.3 tested for effectiveness of mosquito drop test irrespective of contents.
12.That the contents of paragraph 12 are a matter of record and needs no reply.
13.That the contents of paragraph 13 are wrong and denied. As on date there is no finalized test method for liquidizers as per CIB. There is also no information available on CIB website as well as in BIS website. Therefore unless and otherwise there is a finalized, gazetted and approved test method, Respondent/Defendant No.3 as an independent consumer product/services testing organization, has full liberty to follow any other finalized method of any country especially that has similar topical climate conditions. As far as competency of testing is concerned, the Respondent/Defendant No.3 is fully familiar, experienced and competent to get the liquidizers tested in accredited test lab based on its decades of long experience in this field and also having tested the product in 2005-06 as well, which the Plaintiff appreciated and did not object. Document No.8
14.That with regard to contents of paragraph 14, it is stated that since there is no finalized and validated national standard as well as methodology for liquid vaporizers, it could be tested any test centers or any other accredted center having knowledge and understanding of the any other country's scientifically validated test method.
15.That the contents of paragraph 15, are a matter of records and needs no reply. However, it is submitted that the Respondent/Defendant No.3 has tested one of the variants of the Applicant/Plaintiff's product and got the same tested at test centre. The consumer buys for his own use by paying cash. At the point of purchase where a consumer has very limited time, the consumer cannot differentiate among the three or may be more variants as mentioned by the plaintiff. The Respondent/Defendant No.3 has tested the Plaintiff's brand as well as others including Respondent/Defendant No.1 along with three other brands namely Maxo, Knight Queen, and Mortein for their overall performance including bio efficacy.
16.That the contents of paragraph 16 are a matter of record and needs no reply.
17.That the contents of paragraph 17, 18, 19 and 20 are a matter of record and needs no reply.
18.That the contents of paragraph 21 are a matter of record and needs no reply. It is submitted that the Respondent/Defendant No.3 has conducted the tests in the lab and shared the test findings with the Applicant/Plaintiff as well as others prior to publishing of comparative test findings for consumer's interest and education.
19.That with regard to paragraph 22, it is submitted that the consumers are not interested in commercial details of the formulation of the Applicant/Plaintiff's product but what matters is the efficacy or usefulness of the product and its performance at the consumer's end.
20.That the contents of paragraph 23 are not concerned with Respondent/Defendant No.3 and thus, the same are denied for want of knowledge.
21.That the contents of paragraph 24 are wrong and denied. It is stated that the Defendant No.3 has presented facts clearly in Consumer VOICE magazine based on overall test performance and ratings which are based on settled norms and test report of NABL accredited laboratories.
22.That the contents of paragraph 25 are wrong and vehemently denied. It is stated that there is no obligation to go for CIB approved test centre as listed. CIB approved test centers are primarily intended for pesticide and their formulation for agricultural usage which is predominant and they also can test for other category of mosquito repellents like coils & mats. However the liquidizers are not covered under the said test centers. CIB as well as national standards body (BIS) is yet to formulate and finalize the acceptable test method for the liquidizers after consulting its stakeholders (including manufacturers, research institutions / (labs) regulatory bodies (CIB) consumer organizations etc. In absence of the above, the Respondent/Defendant No.3 has used the scientifically validated method of Malaysian Standards Body which is more appropriate for Indian tropical conditions and addresses the bio-efficacy test more accurately for this category product (liquid vaporizers) largely being sold in India. It may be noted that manufacturers of vaporizers mosquito repellents are selling their products across the country without the test method being formulated/implemented by the National Standard body. As stated above, in absence of validated and approved national test method for a particular product, one can always follow any international/regional/any national test method and this has been done in the current test also by Defendant No.3 and 4 method already approved and accepted. Thus only Malaysian method is the most appropriate method that fits into for testing liquid vaporizers. In fact it is not the first time the Respondent/Defendant No.3 is testing these products. It already has a sound experience of testing coils, mats & liquid vaporizers as they were firs tested in 2005-06 where Applicant/Plaintiff's brands were also included. The Plaintiff appreciated Respondent/Defendant No.3's good work and also did not object to publish the comparative test finding in its consumer magazine to educate consumers. At that time, the Applicant/Plaintiff agreed to the test method/procedure, test results, test lab utilized and did not raise any objection whatsoever. In the present case of comparative testing, the scientific tool testing was conducted only when the 50% quantity of chemical remains in the dispenser and also repeated thrice for accuracy of analysis of test results. The reason being that (i) at 100% quantity of liquid the effect is higher and at the remaining 10% quantity, the effect is lesser. Hence, the most ideal state for testing was to test at 50% quantity remaining for all the brands and the same has been reported to the Plaintiff for comments without any objection and published. The covering letter of Respondent/Defendant No.3 to the Applicant/Plaintiff, dated 28 December 2011, clearly reveals that they are test results of their products only and as a policy matter the individual test results are shared with their respective manufactures/companies giving them opportunity to respond/react to the performance of their brands within a specified time. The Applicant/Plaintiff failed to respond to any of the points stated therein at the relevant time prior to publication. It is not arbitrary to design the test weight age from parameter to parameter. In fact, before finalizing the draft test program, it was shared with the major manufacturers including the Applicant/Plaintiff, but did not get any response. The weight age plan is also presented in the Defendant No.3's Ombudsman committee meeting where various stakeholders (including manufacturer assn. like FICCI, CII, ASOCHEM etc., test labs BIS, MoH, MoCA etc. were also invited to present their views on the proposed weight age for test parameters, test protocol followed, test labs, brands finalized for testing etc. A copy of the extract from the Ombudsman Meeting dated 21 April 2011 is filed as Document No.22. These minutes have the approval of Retd. Chief Justice of India Honble Justice P.N.Bhagwati who signed the minutes on 21.04.2011. The Respondent/Defendant No.3 has conducted the study to judge the effectiveness of the regular selling mosquito repellants by purchasing the products from the retailers as a common consumer buys. Based on the bio-efficacy test, the Respondent/Defendant No.3 has published and guided the readers. The Respondent/Defendant No.3 is surprised to note that in spite of the color identification, the consumers are still not educated & informed about the potency. This is the job of Applicant/Plaintiff as well as other manufacturers and unbiased testing organizations through advertisements, campaigns for creating awareness among the consumers.
23. That with regard to the contents of paragraph 26, it is stated that Respondent/Defendant No.3 and 4 had no intention to attack the Applicant/Plaintiffs brand of any kind. Such reports are published regularly every month for different products/services. The Defendants No.3 and 4 have published the test findings to educate the consumers on the consumer choices which was primarily based on the overall performance.
24. That the contents of paragraph 27 are wrong and denied. It is vehemently denied that the Respondent/Defendant No.3 is misleading the consumers. The slogan is intended to create awareness amongst the consumers about the products and services. Jago Grahak Jago compaign also covers consumer awareness, education and empowerment. Comparative Testing done by Respondents/Defendants No.3 & 4 and are in line with the mission of the Union Ministry of Consumer Affairs, Food and Public Distribution. Jago Grahak Jago slogan has been used widely to sensitize the consumers about their rights and Best Buy in the open market scenario.
25. That the contents of paragraph 28 are wrong and denied. It is stated that the comparative testing was conducted from amongst the regular selling brands and their variants including that of Applicant/Plaintiff. The quantity of the liquid vaporizers was measured from the label of the brands. About the bio-efficacy, it has to be effective irrespective of the quantity being sold whether in 45 ml or 35 ml packs. The value for money should be related to their overall performance. The Respondent/Defendant No.3s prime objective was to analyze and examine the effectiveness in repelling and killing the mosquitoes for which consumers buy their product and for which manufacturers sell in variable quality. The price matters and was covered in the story while publishing the test results.
26. That with regard to the contents of paragraph 29, it is submitted that the testing was conducted without slider provision so that comparison is justified and comparable as far as possible. The active ingredients that has the potency to kill/destroy mosquitoes was tested in the lab and has been already been shared with all the companies including the Applicant/Plaintiff and Defendant No.1. What matters is that on effectiveness to repel/destroy mosquitoes as per the test method that was followed. The Respondent/Defendant No.3 has clearly followed the method to analyze the bio efficacy of the brands whatever active chemical they contain among any of the active ingredients (potent chemical) in their brands as mentioned by the Applicant/Plaintiff. The matter of concern is the bio-efficacy for which a consumer buys this product. The Respondent/Defendant No.3 is only bothered with the repel/killing factor and not with the claimed potency details.
27. That the contents of paragraph 30 are wrong and denied. It is denied that Defendant No.3 does not have the expertise to conduct such tests. The Defendant No.3 has been testing procedure and services for over 10 year and over 120 results have been published and this is not the first time that Respondent/Defendant No.3 has conducted this testing. Attention of Applicant/Plaintiff may be drawn to the previous testing conducted in 2005-06 where the same method & protocol was followed and Applicant/Plaintiff appreciated the efforts of the Respondent/Defendant No.3. The method of testing bio efficacy used is simple and accurate, which is that if the mosquitoes are easily sourced & carefully handled, any laboratory can follow and conduct the tests by following the Malaysian test method. Even the method of CIB (for coils & mats only) as mentioned by the Applicant/Plaintiff is largely similarly to Malaysian method and resulted values have closer relationship as mentioned by Applicant/Plaintiff. The points to be noted is that there have been 3 repeat tests by Respondent/Defendant No.3 to confirm the findings. CIB approved laboratories are meant for manufacturers and not a comprehensive testing body like Respondent/Defendant No.3. Further, it is submitted that during this time of study also, the Defendant No.3 has followed the same method and shared the test findings of the Applicant/Plaintiffs brand, but did not get any feedback and responses or criticism of the Applicant/Plaintiff or any other manufacturer.
28. That the contents of paragraph 31 are wrong and denied. It is stated that CIB has approved some test centers who can conduct the tests on mosquito repellants for mats and coils. But since there is no national test method of BIS (the national standard body for formulation & monitoring the product standards), for liquid vaporizers or the test lab certified and approved to conduct bio efficacy tests for liquid vaporizers and in both the cases, the Respondent/Defendant No.3 had no choice but to follow Malaysian standards which was requested from Director General of Malaysian standards that enabled and made possible to conduct comparative study for consumers. In fact Respondent/Defendant No.3 had also requested to BIS for helping in the availability national standards especially for liquid vaporizers as well as any other countys test method in absence of BIS standards. After the first testing was completed successfully in June 2006, Respondent/Defendant No.3 had written to the BIS for adopting the Malaysian standards since it was most suitable to Indian climate conditions as well as accurate, simple to follow.
29. That the contents of paragraph 32 are wrong and denied. It is stated that the testing for physical and chemical test conducted in a NABL accredited lab (Arbro Analytical division, New Delhi) is of repute and has the competency, capability & experience of testing for variety of products from foods, agriculture, chemical, cosmetics, toiletries & Pharmaceuticals including various compounds of pesticides residues in the products and also some insecticide residues conducted through the most sophisticated, latest and accepted test instruments at national and international level. As regard the above test lab, Arbro has recently in 2010-11 conducted testing of about 100 pesticides in about 350 samples of fresh vegetables & fruits at 100 PPB level with the help of in house latest & sophisticated instruments. Since there was no validated methods formulated by the BIS, the Respondent/Defendant No.3 has utilized the most appropriate method by using the services of NABL accredited test lab (Arbo Analytical Division, New Delhi) where Respondent/Defendant No.3 had familiarized the test method to the lab (M/S Arbro) through various meetings and discussions. M/S Arbro had no problem in understanding the simple test method of Malaysian Standards. Thus the Respondent/Defendant No.3 has referred to the test lab having existing NABL status and thus has credibility & competency besides expertise to test pesticides and also insecticides residues, vide the certificate issued from NABL extract. A copy of extract of study test report by ARBRO is filed as Document No.16.
30. That the contents of paragraph 33 are wrong and denied. It is stated that as regards the anomalies in the Malaysian test method are concerned, the method used was for 50% remaining contents in the refill packs as that was the most appropriate stage to judge the efficacy at mid level. With regard to the Knock Down, it is stated that, in the Consumer Voice magazine, it is not necessary to give minute details of the test results, but clarity was given in a simple manner understandable to a common consumer for whom Respondent/Defendant No.3 is conducting the comparative testing. Further, what the Plaintiff is referring to is paragraph 6.2.3 of Malaysian standard MS:1911:Pt-1:2006 which is for mosquito coil for knock down time and whereas in the instant case, liquid vaporizes were tested as per Malaysian standard MS:1398 Part II:2003. With regard to Test Insect & Species of mosquitoes, the applicant/plaintiff refers to Laboratory cultured sucrose fed female mosquitoes to be used and in the present test conducted by the Defendant No:3 the lab has utilized wild species mosquitoes. The reason for this being the mosquito sourcing centre namely the National Malaria Research Institute was not in a position to apply the required quantity of referred mosquitoes even in more than six months time. Hence wild species mosquitoes were sourced from around the domestic areas that included all variety of mosquitoes that harm the consumers through bites during the day & night. In any case what consumer is affected by the bites of all kind of wild mosquitoes in the day to day life. Hence there is no necessity to use only lab cultured category. However, it is important to judge the efficacy of manufactured repellent against mosquito bite & before their product is released into the market for sale to the consumers. With regard to number of test insects used, the Defendant has specified in the test results which was sent to the Plaintiff when the test results were shared with them in 28/12/2011. The test at KT-50 was repeated thrice to arrive at an accurate analysis and statistics to judge the bio efficacy. With regard to the standard, it is submitted that the Defendant No.3 did not use the reference standard as it was already comparative testing of various brands that were compared against each other. The reference standards are normally used when a manufacturer gets his product compared for getting license or otherwise before releasing his product for retail sale when only one brand of sample is tested. With regard to Sample Testing, it is submitted that the Defendant No.3 has tested the liquid vaporizers at 50% quantity remaining instead of 100% and 10% quantity remaining as the mid point is the performance of bio efficacy and was considered as being optimal and best. With regard to Assessing Time, it is submitted that, in the Consumer Voice magazine, it is not necessary to give minute details of the test results, but clarity was given in a simple manner understandable to a common consumer for whom Defendant No.3 is conducting the comparative testing.
31. That with regard to paragraph 34, it is submitted that the article relates to the knock-down and not a single brand could achieve 100% efficacy bio efficacy test even in an enclosed chamber, on the contrary some of the brands use misleading claims like knock-down, max-kill etc. 34.1. That with regard to paragraph 34.1, the depiction and table was given for the readers to show how the liquid vaporizers look like and identify when they read the story along with the table prepared which is based on the overall performance.
34.2. That with regard to contents of paragraph 34.2, it is submitted that Respondent/Defendant No.3 conducted the testing with the primary objective to guide the consumers based on the regular selling product a consumer buys for his household use. Hence it is Defendant No.3s duty to educate the consumers by using appropriate test method (national/international) to enable them to make informed choices.
34.3. That with regard to Contents of paragraph 34.3, it is submitted that the testing time was purely based on the calculated testing time based on the declared time on the packagings.
34.4. That with regard to paragraph 34.4, it is submitted that the article was based on the tests conducted in the Arbro test lab used by the defendant No:3.
34.5. That with regard to contents of paragraph 34.5, it is submitted that the information mentioned is based on the printed price on the package and not based on unit price.
34.6. That the contents of paragraph 34.6 are wrong and denied. It is denied that there is a contradiction in article. The Respondent/Defendant No.3 has used Indian standards (i.e. for physical & chemical tests) and Malaysian standards for bio efficacy test just to guide the readers as well as companies.
34.7. That with regard to the contents of paragraph 34.7, it is submitted that the test was based on the guidelines followed from the Malaysian standards to conduct the comparative testing for maintaining the ideal test conditions.
34.8. That with regard to contents of paragraph 34.8, it is submitted that the score is proportionate to the weight age assigned versus the results obtained. The resulting value was converted into the percentage and reported this is a statement of fact based on simple calculation.
32. That the contents of paragraph 35 are wrong and denied. It is denied that the table used is arbitrary and flawed. The weightage plan for assigning weightage is part of the draft test program for comparative testing and is a matter of Defendant No.3s policy where it was shared with the various stakeholders including the manufacturers. The weight age scheme is decided after consulting various in-house and external experts which depends upon the merits of the test parameters and a fair judgment and balancing is taken care while finalizing the weight age plan. The performance test gets the maximum weightage followed by quality, safety, environments etc.
33. That the contents of paragraph 36 are wrong and denied. It is submitted that evaluation for lasting time was done and was analyzed based on the measured time versus the declared time as declared on the products. In the Plaintiffs case, Defendant No.3 has assigned full weightage as it was higher in duration.
34. That with regard to the contents of paragraph 37, it is stated that, as a standard practice by comparative testing Voluntary Consumer Organizations across the world, evaluation of the test results are done from parameters to parameters. In the overall performance, total sum of the obtained weightage/score is reported in the overall findings. Anomalies of the test findings are also highlighted if exceeding the permitted limits. The individual test parameters are rated independently therefore active ingredients as well as lasting time parameters are two separate parameters and were rated separately. In the overall ratings, brand All-out of Defendant No.1 scored highest, thus rated on top. It is relevant to point out that such comparative testing is done by consumer organization around the world and even ISO had prepared standard copy. A copy of ISO comparative testing of consumer products and related services is filed as Document No.19. The BIS has also adopted this standard as a national standard and a copy of same is filed as Document No.18.
35. That the contents of paragraph 38 are wrong and denied. It is stated that appropriate Indian standards guidelines for physical & chemical tests were followed, and for bio-efficacy performance, Malaysian Standard was followed as already mentioned in the Respondent/Defendant No.3s communications as well as in the Respondent/Defendant No.3s magazine. The Applicant/Plaintiff is well aware about the Defendant No.3s previous study conducted in 2005-06 where it was explained to Plaintiff who had appreciated the test method as well as the test findings.
36. That with regard to the contents of paragraph 39, it is submitted that the standards mentioned by the applicant as per the letter written to them by the NCL and Haffkines applies only to the manufacturers who apply under Sec 9(3) for registration and the same is not applicable for comparative testing of products. With regard to the category of mosquitoes it has already been replied under reply to para 33.
37. That with regard to paragraph 40, it is incorrect to state that testing at 50% remaining liquid vaporizer quantity was unscientific and rough. The effectiveness of any product under full potency level will perform on the top and on the lower side it will be ineffective. For the manufacturer who formulated its product before launching for sale, have to ensure that product is effective all across the stage till the last drop. Hence the 50% formulae was adopted which is fair, accurate and gives mid point accuracy for all brands. This offers fair comparison using all the available brands.
38. That with regard to paragraph 41, it is stated that so far, CIB accepted mollified WHO guidelines for bio-efficacy measurement has been formulated for mats and coils and not for liquid vaporizers. Malaysian Standard is very much relevant in India. As long as BIS and CIB has not implemented the standards for liquid vaporizers, any countrys method already established, scientifically validated & enforced, can be followed. If not adopted, the standards from SNF, ASTM (American), DIN (German), SABS (South African), etc. can be adopted apart from ISO/IEC where BIS is a regular member. The Defendant No.3 has followed the same norm.
39. That the contents of paragraph 42 are wrong and denied. It is stated that overall bio-efficacy test is the key test for consumer organization/consumers and judged the brands effectiveness irrespective of what key ingredients have been used in their formulation.
40. That the contents of paragraph 43 are wrong and denied. It is stated that CIB test protocol is only limited to coils & mats not for liquidizers. Mosquitoes as referred in the Malaysian standards could be part of the wild mosquitoes and are harmful to the consumers health. Restriction to Aedes species in fact narrows the scope of testing. The Defendant No.3 has followed the Malaysian Standard at a particular percentage of quantity (50%) instead of following all the three levels but had repeated the test thrice. The key focus in test was on the bio-efficacy to judge the liquidizers overall effectiveness and claim regarding ingredients was never in focus. Weightage in the comparative testing is assigned without any bias based on the merits of the test parameters and was approved in the Defendant No.3s Ombudsman Committee for going ahead with the testing. The primary objective of conducting the comparative testing are mainly based on the test parameters and not the price. The price factor is referred only in the very last stage. This is not based on units. The lasting time was based on the lab test conducted and provided.
41. That the contents of paragraph 44 are wrong and denied. The Plaintiff is fully award about Respondent/Defendant No.3s test findings published in 2006 where Plaintiff appreciated Defendant No.3s good work and also given some general suggestions. In the present case of comparative testing of the Defendants No.3 conducted few months back, Plaintiff failed to send response to the latest test findings (of the study) sent on 28/12/2011 where this time also it was mentioned about the test method followed. It is vehemently denied that there is any collusion or conspiracy between the Respondent/Defendant No.1 and 2 and Respondent/Defendant no.3 and 4. It is stated that the test was conducted in fair manner with the sole purpose of apprising the Consumer with the facts which the Respondent / Defendant No.3 has come out with.
42. That the contents of paragraph 45 are wrong and denied. It is denied that the comparison was unfair. It is stated that the bio-efficacy performance test was repeated thrice by the NABL Accredited laboratories and the same clearly indicates whose performance is higher or lower. Defendant No.3 has not compared the active chemicals only but also the overall performance to judge the efficacy of the product.
43. That the contents of paragraph 46 are a matter of record and needs no reply. However, the Respondent/Defendants No.3 & 4 has made comparison on the established formula of apple to apple and the same is not incomparable as alleged by the Applicant/Plaintiff.
44. That the contents of paragraph 47 are wrong and denied. It is denied that the theme was to disparage the Respondent/Plaintiffs product or to show that the Respondent/Defendant No.1 product is better. It is stated that the comparison of mosquito repellent liquid vaporizers is based on the test results which were shared with the Applicant/Plaintiff and since the Plaintiff did not respond to the letters, the test report was published. The Plaintiff have simply kept quiet at that time and are now raking the issue to derive undue financial gain by hurling baseless statements. The test results give comparative rating of efficacy and performance in relation to price of the product so that the consumer has discretion to choose the same.
45. That the contents of paragraph 48 are wrong and denied. It is denied that the test was to discredit or disparage the Applicant/Plaintiffs product or to mislead anyone. It is submitted that as long as the test findings of the tested brands are disseminated for consumer awareness and choice, it does not offend any interest of the parties concerned but only serves to draw attention to independent assessments on the products in the market.
46. That the contents of paragraph 49 are wrong and denied. It is denied that the test has led to any unfair advantage as the same was published to apprise the consumers of the report. The intention was clear and the motive was to show the consumer the report.
47. That the contents of paragraph 50 are wrong and denied. It is stated that any advertisement depicting the test results cannot create any doubt in the minds of the consumers because they are given actual information about the tests as per laid down standards. The tests are conducted by well authenticated, accredited laboratories in a transparent manner. The stakeholders are consulted before and after the testing of products and prior to publication. As such, there is no disparagement of any product and in fact clears all doubts about the performance of a product.
48. That the contents of paragraph 51 are relating to the news paper advertisement given by the respondent No:1 & 2 and respondent No:3 & 4 have got nothing to do with the said advertisement campaign done by the 1st and the 2nd respondent.
49. That the contents of paragraph 52 are suitably replied under reply to para 51.
50. That the contents of paragraph 53 are not replied as no relief is claimed against the 3rd and 4th respondent.
51. That the contents of paragraph 54 are wrong and denied. It is stated that no injunction should be given on the test report as firstly the same was done in free and fair manner and secondly, the Respondent/Defendant No.3 had intimated the Plaintiff of the report and had asked for their comment and it is after waiting for a long time that the Respondent/Defendant No.3 published the report. The Applicant/Plaintiff did not object or give any comments on the report which goes to show that the Applicant/Plaintiff had no objection to the report. It is stated that this Suit itself is an after thought.
52. That the contents of paragraph 55 are wrong and denied. It is vehemently denied that there is cause of action against the 3rd and 4th defendant. Even according to the applicant his cause of action arose in March 2012. The test report of the respondent 3 was published in its magazine in Feb.2012. This shows that the publication of the Article in the 3rd respondents magazine by the 4th respondent has not caused any damages to the applicant and it is only the advertisement campaign by the 1st and 2nd respondent has given cause of action if any according to the applicant. Therefore in absence of any cause of action against the 3rd and 4th respondent to institute the suit itself the question of granting interim injunction would not arise at all. Thus the interim order granted against the respondent 3 & 4 is liable to be vacated and the suit is liable to be dismissed on the ground of failure to make out any cause of action against the respondent 3 & 4.
53. That the contents of paragraph 56 also relates only to the advertisement campaign done by the 1st and 2nd respondent and nothing is claimed against 3rd and 4th respondent. Further it is stated that the Respondent/Defendant No.3 and 4 work from Delhi and the tests were done in Delhi it has its registered office at Delhi and the registered office of the applicant is in Mumbai and the letter correspondences with the applicant were all done only from the registered office of the 3rd respondent to the applicants registered office at Mumbai. Therefore even assuming without admitting that the applicant has got any cause of action against the respondent No:3 & 4 it can maintain suit only in any of the above mentioned places and not in Chennai as no part of cause of action arose in Chennai. Thus, present suit before this Honble Court is not maintainable for want of jurisdiction. Hence, the present application deserves to be dismissed in limine.
The last paragraph is the prayer which deserves to be dismissed with exemplary costs as the plaintiff has got no cause of action against the respondent No:3 & 4 and has also failed to establish his locus standi to institute the present action in this Honble Court.
15. As already noticed above, defendant nos.1 & 2, though have not filed counter, have chosen to file applications for vacation of interim order passed by this Court. The affidavit filed in support of the application for vacation of stay reads as under:
"1. I am the Legal Manager of the Applicant / Defendant No. 1 company. am aware of the facts and circumstances of the case and competent to swear to this affidavit.
2. I have read the affidavit dated 16.04.2012 of Mr. Shripad Vasudeo Virkar and at the outset I deny all the statements of the said Mr. Shripad Vasudeo Virkar in the affidavit and specifically that which is contrary to what is stated hereafter by me. I submit that the Applicant / Defendant No.1 manufactures, markets and sells liquid vaporizer mosquito repellants under the trade mark ALL OUT. The Applicant / Plaintiff sells Mosquito Repellent Vaporizer machines under the trade mark GOOD KNIGHT.
ABOUT THE APPLICANT / DEFENDANT NO. 1:
3. I submit that the Applicant / Defendant No. 1 (hereafter referred to as Defendant No. 1) was established in 1886 as a family Company, Defendant No. 1s Parent Company M/s S.C. Johnson & Sons Inc., USA, is one of the leading Companies in the world engaged in the manufacture of household cleaning products, air fresheners and insecticides. The business can broadly be categorized into the following segments:
Home Cleaning Air Care Pest Control Home Storage Auto Care
4. In a period spanning more than a century, the Defendant No. 1s Parent Company from a modest beginning as parquet flooring Company in Racine, Wisconsin has transformed into a thriving global enterprise having operations in over 70 countries and its products selling in over 110 countries across the globe in Europe, Asia, Africa, Australia, North America, South America, etc. It has a strong work force of around 12,000 employees globally with their combined annual turnover being approximately $ 8 billion globally.
The product portfolio of the Defendant No.1 as well as its parent Company includes global brands such as ALL OUT, Mr. Muscle, Glade and Kiwi. Various product leaflets are annexed as Document No.1.
5. I submit that the Defendant No.1s Parent company was earlier known as M/s. Karamchand Appliances Private Ltd. in India. It had been promoted by the Arya Family and established a niche for itself in the Mosquito Repellant Industry. M/s Karamchand Appliances was previously known as M/s Roshni Appliances Pvt. Ltd. and had given M/s Karamchand Appliances Pvt. Ltd. a licence to use the mark ALL OUT. That vide order dated 9th October, 2006 of the Honble High Court at New Delhi, M/s Roshni Appliances Pvt. Ltd. and M/s Karamchand Appliances Pvt. Ltd. have now amalgamated with M/s S. C. Johnson Products Pvt. Ltd. Some of the achievements of the Defendant No1 in the Mosquito repellant industry in India are:
First company to introduce Liquid Vapourisers in India: The traditional market in India for Mosquito repellant was in the form of Coil, Oil, sprays and thereafter mats were introduced. For the first time liquid vaporizers were introduced by the Defendant No.1 Company with technical assistance from leading Japanese Company, known as Earth Chemical Company, Japan.
Defendant No.1 was the first to introduce Liquid vaporizer apparatus: As a necessary corollary to the introduction of liquid vaporizers, the Defendant No.1 also introduced the apparatus for the first time in India.
SALES TURNOVER:
6. I submit that the Defendant No.1s ALL OUT product has achieved good sales turnover in the last few years. The annual turnover for ALL OUT of the Defendant No.1 is to the tune of Rs.400 crores for the year 2010-2011. The Defendant No.1 also spends huge amounts on advertisement and promotion for the ALL OUT branded products and the same is over Rs. 72 crores for the year 2010-2011.
7. The Applicant / Plaintiff (hereafter referred to as the Plaintiff) in the above applications is seeking interim injunctions against the advertisement issued by the Defendant No.1; against the article and tests conducted by the 3rd and 4th Respondents / Defendants; against the conduct of tests for biological efficacy; against the publication of the article that appeared in the 3rd respondent / defendant magazine, among others. The interim reliefs have been sought by the Plaintiff on the following grounds;
A. That the impugned advertisement disparages/ denigrates the Plaintiffs products.
B. That the impugned advertisement makes false and misleading representations C. That the Respondent / Defendant No.3 does not have expertise to conduct the tests in order to gauge the biological efficacy of Mosquito repellant liquid vaporizer.
D. That the products which have been compared are not comparable products.
E. That the laboratories of Respondents / Defendant Nos.3 and 4 are not approved test laboratories.
F. That Defendant No.1 had relied upon the reports of the Respondent / Defendant No.3 wrongly.
G. That there is collusion / conspiracy between Defendant No.1 on one side and the Respondents / Defendants Nos.3 and 4.
H. That the Respondents / Defendants had followed unfair methods of advertising and comparison is unfair.
I. That the advertisement campaign of the Defendant No.1 is false and misleading.
J. That the advertisements of Defendant No.1 are unfair and make dishonest claims and that the same constitute slander and malicious falsehood of goods.
K. That the advertisements are clever and tricky and induce consumers.
L. That the advertising campaign disparages the Plaintiffs product and particularly targeted the product Activ+.
M. That the advertisement is contrary to honest practice and it is with the dishonest intention and malicious motive.
N. That the advertisement is based on false and misleading claims.
O. That the advertisements denigrate and defame the Plaintiffs product.
P. That the purpose behind the campaign is to tarnish the Plaintiffs reputation by resorting to commercial disparagement.
Q. That the advertisements are against public interest and consumers interest.
R. That the advertisements lower the reputation and discredit the Plaintiff.
8. I submit that a mere perusal of all the allegations in the applications as paraphrased hereinabove, clearly shows that the applications proceed broadly on the following two parameters;
That the advertisements are false, defamatory, disparaging and denigrating.
That the advertisements are unfair and misleading.
It is stated that the said allegations are baseless as would be evident from the averments herein below. There is no falsity in the advertisements of the Defendant No.1. In fact the Defendant relies upon three credible and independent reports;
7 Report by Consumer Voice;
7 Report by Brand Equity (Economic Times);
7 Report by IMRB.
All the above mentioned reports are well researched reports upon which almost all businesses in India rely upon in order to assess and gauge the standing of a particular product. Respondents / Defendants Nos. 3 & 4 are well reputed consumer welfare organizations recognized by the Government of India. In fact it is the Plaintiffs action which is in fact ill motivated. The Plaintiff has leveled baseless and misleading allegations without disclosing the true and correct facts and by presented the facts in a one-sided manner.
9. I submit that the Plaintiff in fact has indulged in complete suppression of facts for obtaining an injunction. The Plaintiff has failed to disclose that in the year 2005, the Plaintiff itself has appreciated and supported a test report published by Respondents / Defendants Nos. 3 & 4. In the said report of 2005, since the Plaintiffs product was highly ranked and the test results had suited the Plaintiff, no allegation or complaint whatsoever was ever raised against the said report. Attached herewith is the copy of the report published by the Respondent / Defendant Nos.3 and 4 in 2005, which ranked the products of the Plaintiff quite highly at that time, as Document No.2. The Plaintiff had in fact sent an appreciation letter to Respondent / Defendant Nos.3 and 4 as per the knowledge of the Defendant No.1. Copy of the said email dated 9th June, 2006 by Plaintiff to Consumer Voice is annexed as Document No.3.
10. I submit that the credibility of Respondent / Defendant No.3 is beyond question in as much as the Respondent / Defendant No.3 is a non profit organization which is accredited by the Ministry of Consumers Affairs and has entered into agreements with the Ministry from time to time. The said society has done enormous amount of work in the testing of a larger variety of consumer appliances and goods which include food products, household appliances, water, shampoo, toiletries, snack products, cosmetics, sweets and savories, beverages, etc. The said organization uses many well known and Government accredited NABL (National Accreditation Board for Testing and Calibration Laboratories) laboratories for testing of the products including FRAC, Food Research and Analysis (FICCI), Shri Ram Institute of Industrial Research, Arbro Analytical Division, National Test House (Ministry of Consumers Affairs), etc. The said organization publishes periodic reports after analyzing and surveying various product categories. Several such product categories include products manufactured by the Plaintiff and/or its Group companies.
11. I submit that the report which was published in the year 2011-12 by Voice Society was done after inviting suggestions and comments on the draft testing programme for comparative testing of Mosquito repellant. After the tests were conducted the reports were sent to the respective companies including Defendant No.1. Copy of the letter written by the Respondent / Defendant No.3 to Defendant No.1 dated 28.12.2011 is annexed herewith as Document No. 4. This letter clearly shows that the test reports were shared with the manufacturers prior to the publication. According to the information of Defendant No.1 the test reports were similarly shared by other manufacturers whose products were tested by Voice Society. In fact all the manufacturers have consented to this test report.
12. I submit that the advertisement published by the Defendant No.1 which is based on the test report as contained in Consumers Voice Magazine of February, 2012 (Copy of which is annexed as Document No.5) is a truthful advertisement. In order for any advertisement to constitute disparagement or denigration, the claims made in the advertisement have to be false. This is the basic pre-condition which has to be satisfied in as much as the advertisement itself, which is based on the report of Voice Society, merely contained the facts as revealed in the said test report. The advertisement published by the Defendant No.1 does not exaggerate/ denigrate in any manner. The advertisement merely relies upon the test conducted by the Voice Society which is a standardized body and depicts the page of the said magazine itself. There is no part of the advertisement which contains any false claim, misleading claim or disparaging or denigrating claim. For any advertisement to constitute as slander of goods, the basis has to be a false statement which is completely absent in the present advertisement. Both the advertisements, one with the title of Thank you India and other which depicts the extracts from the magazine are based on the truthful test report made by the Voice society and other bodies.
13. I submit that the allegation of the Plaintiff that incomparable are being compared is baseless in as much as the Voice Society has picked product samples which are available in the market in order to test the efficacy of the product. The alleged objections being pointed out by the Plaintiff in the said report ought to have been written by the Plaintiff in the form of comments or information to the Voice Society when an opportunity was given to them way back in December, 2011. The Plaintiff does not state any where in the plaint that it made any attempt to clarify the position to the Voice Society and having acquiesced and tacitly consented to the report, cannot raise grievances only when its competitors brand i.e. of Defendant No.1 has been ranked above the Plaintiffs brand. The Defendant No.1 is legally entitled to rely upon the said report in order to advertise the quality and efficacy of its products. One of the advertisements which is complaint against called Thank you India in fact relies upon three different surveys which are as follows:
i. Ranked No.1 Household care brand in Most Trusted Brands Survey, 2011 conducted by Brand Equity (Economic Times) ii. Ranked No.1 Mosquito Repellant for biological efficacy by Consumers Voice.
iii. Voted No.1 brand among liquid vaporizer in India as per IMRB Household panel data.
14. Thus, one advertisement relates exclusively to the Voice Society report and the second advertisement relates to three independent surveys enjoying very high credibility. Copies of the brand equity survey and the IMRB Household panel data are annexed as Document No.6.
15. I state that the Defendant No.1 has taken the utmost care and caution to ensure that nobodys product is disparaged or denigrated. It is a matter of fact, as revealed in the report of Voice Society that ALL OUT has been ranked as No.1 brand in liquidizer category. Under such circumstances the grievances of the Plaintiff is ill founded.
16. I am advised to submit that the legal position internationally is quite clear including in India that any advertisement cannot be taken to be false or misleading unless it is motivated by malice and that they contain false information. The Advertisements of the Defendant No.1 are neither malicious nor do they contain any false statements. In fact, it is well settled law that an advertisement is considered misleading only if it is likely to deceive the consumers to whom it is addressed or if it is deceptive. Any advertisement which is fully justified by the publisher of the advertisement ought not to be injuncted by the court. The principles in the law of advertisement are similar to the principle in defamation, etc. wherein a truthful advertisement ought not to be injuncted. The products of the Defendant No.1 has been scored highly on all three counts namely (a) qua the brand (b) qua biological efficacy (c) on the basis of Market research. It cannot be argued that the Defendant No.1 cannot take advantage of the said three surveys which have ranked the Defendant No.1s products so highly. In a free trade market it is completely permissible for the Defendant No.1 to promote and advertise its own products so long as no false claims are made. The Defendant No.1s right of advertising which is a Fundamental Right as enshrined in Article 19(1)(a) and 19(1)(g) of the Constitution of India, ought not to be curtailed. The advertisement being part of the free speech right in so far as the business of the company is concerned plays a major role in promoting the business and well established credibility scientific reports can be relied upon by companies to advertise its own products. This is the settled position in law. In fact it is the general practice in the industry and business to advertise and publicise rankings or survey results. The Plaintiff itself indulges in such advertising and so do third parties. Copies of some such advertisements are annexed as Document 7. Advertisements of companies are for brands like Good Knight (Consumer Survey of Product Innovation 2009) Philips Nature Fresh Baidyanath
17. I am advised to submit that it is settled law that one who approaches the court has to approach the court with clean hands. The conduct of the Plaintiff is far from being clean in as much as it has indulged in blatant defamatory advertising and have been injuncted by various courts. On the other hand the Defendant No. 1 herein has, over a period of time, established an excellent reputation and market for itself. The Defendant No.1 has not diluted or tarnished the reputation of the Plaintiff in any manner. In advertisements the Defendant No.1 has merely relied upon credible reports of independent agencies in order to advertise their own products. There is no unfair advertising or disparaging advertising that has being indulged into. The Defendant No.1 has also not made any tall claims in the advertisements in order to make the advertisements slanderous. The advertisements of the Defendant No.1 are in fact in the Consumers interest and in as much as it is a fact that ALL OUT was ranked as the best brand of the products. Thus, the advertisements are also safeguarding the public interest.
PRELIMINARY OBJECTIONS:
18. Without prejudice to what has been stated above, I am advised to submit that no cause of action has arisen in the present suit in as much as there is nothing which is defamatory, disparaging or denigrating in the impugned advertisements. The advertisements are completely within the parameters of law and hence the applications are not maintainable as the suit itself is liable to be rejected.
19. I am further advised to submit that the applications are also not maintainable as the Plaintiff is a party which has itself indulged in incorrect, false and disparaging advertising against the Defendant No.1 previously and injunction being an equitable remedy, the same is neither maintainable nor can be granted in favour of the Plaintiff.
20. I am also advised to submit that this Honble Court does not have the jurisdiction to entertain the present suit. A mere reading of the suit would disclose that the cause of action, if any, is the advertisements of the Defendant No.1 in the print media. Further in the entire suit, the Plaintiff has alleged unfair trade practices, if any, by the Defendant No.1. It is submitted that for the purposes of such so-called misleading advertisements, the correct forum to take up these issues is the self-regulatory industry body, Advertising Standards Council of India (ASCI) or the Competition Commission of India. The matter in dispute, if any, is an advertising or unfair trade practices issue. The suit and the injunction application is specifically barred by law and just to create jurisdiction of this Honble Court, the Plaintiff has sought to invoke a suit for recovery of damages. The suit deserves to be rejected on this ground alone.
21. I am advised to submit that the Plaintiff in the present proceedings have also failed to disclose any cause of action either in law or facts and is hit by the provisions of Order VII Rule 11 of the Civil Procedure Code,1908.
22. I am also advised to submit that the jurisdiction of this Honble Court to try the present suit is also barred by Section 9 of the Civil Procedure Code, 1908 whereby the cognizance is either expressly or impliedly barred. It is submitted that for allegations of unfair trade practices the Legislature has provided for filing of complaint before the Competition Commission of India.
23. I am further advised to submit that under Section 61 of the Competition Commission Act, 2002, there is an explicit bar on the jurisdiction of any civil courts. The said section is reproduced as under:
61. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. I am advised to respectfully submit that for allegations of unfair trade practices, the Legislature has enacted the Competition Commission or the Consumer Protection Act (incase of consumers). Both these Acts explicitly bar the jurisdiction of any civil courts. Thus this Honble Court does not have the jurisdiction to try and entertain the present proceedings and the same deserves to be dismissed.
24. It is further respectfully submitted that the Respondents / Defendants No. 3 & 4 had on a previous occasion in the year 2005 had conducted similar tests and had shown the Plaintiffs brand to be a leading brand. The test methodology was accepted and not objected by the Plaintiff. It is pertinent to mention herein that when the same methodology for tests is used in the present proceedings, the Plaintiff has raised an objection to the same. Further the tests have been carried out by a National Accredited Laboratory namely Arbro Pharmaceuticals Limited.
25. It is further submitted that the Plaintiff in a surreptitious manner and to avail the Jurisdiction of this Honble Court has chosen to make the regional office address of M/s S.C. Johnson Products Pvt. Ltd. as the Defendant No.1 without making the registered office at New Delhi as party to the present proceedings. It is submitted that the Plaintiff has its Head Office at Mumbai and all the main Defendants have their office/ Head Office at New Delhi. Merely in expectation of getting ex-parte Injunction and availing the jurisdiction of this Honble Court, the Plaintiff has chosen to make the regional office as party to the present proceedings. The suit deserves to be dismissed on this ground alone.
PARAWISE REPLY:
1-2 Contents of para 1 and 2 to the extent that they do not form part of record are wrong and hence are denied. It is, however, submitted that the Plaintiff has its registered office at Mumbai as well as the Defendant No.1 has its registered office at New Delhi, the Plaintiff in a surreptitious manner has chosen to implead the regional office address of the Defendant no.1 without impleading the registered office for the purpose of attaining jurisdiction of this Honble Court. In fact, this Honble Court should take judicial notice of such conduct of the Plaintiff who is very well aware of the registered office of Defendant no.1. The impugned advertisement had been published by the Defendant no.1 all across India, the present suit has been filed before this Honble Court by only impleading the regional office of the Defendant No.1 merely to harass the Defendant No. 1. Defendant no.2 is only a C&F agent of Defendant no.1 and has no connection whatsoever with the advertisements which are issued by Defendant no.1. The said Defendant no.2 is liable to be deleted.
3. The contents of para 3 to the extent that they do not form part of record are denied. It is not denied that the Defendant No.1 had published the advertisements in the newspapers as well as in national newspapers. It is, however, denied that the impugned advertisement has in any manner discredited or discouraged the Plaintiffs GOOD KNIGHT ADVANCED ACTIVE PLUS in any manner thereby indulging in any unfair trade practices as alleged. It is also denied that the Defendant No. 1 has adopted any unfair or deceptive practice as alleged. In fact, if the Plaintiff has any reasons to believe that the Defendant No. 1 has indulged in any unfair practices, they ought to have filed a complaint with the Competition Commission of India which looks into unfair trade practices. It is further denied that the Defendant No.1 has indulged in slander of goods or has made any malicious falsehood statements against the GOOD KNIGHT ADVANCED ACTIVE PLUS Liquid vaporizer. It is also denied that the Defendant No. 1 has deliberately acted in an irresponsible and reckless manner by issuing the impugned advertisements based on unscientific, unreliable, arbitrary tests conducted by Respondent / Defendant no.3 devised to favour the Defendant No.1 in publishing the article in the magazine Consumer Voice (Feb. 2012 Issue). It is submitted that the Respondent / Defendant no.3 previously also had published such reports wherein the Plaintiff had been shown as the leading manufacturer and mosquito repellants. The Plaintiff at that time had never complained regarding the test methodology of the Respondent / Defendant no.3. However when the very same Defendant has published another report which shows the Defendant no.1 as the leading manufacturer, the Plaintiff is averring that the reports are unscientific and unreliable. The Plaintiff is trying to blow hot and cold at the same time as when the reports are according to their needs they take advantage of the said report and when the very same Defendant publishes a report which is not to their liking they raise objections regarding the validity of the tests. It is further denied that the Defendant No.1 has in any manner disparaged the Plaintiffs entire range of GOOD KNIGHT as alleged. The preliminary submissions hereinabove are referred to and relied upon.
5-7. Contents of para 5 to 7 do not relate to the Defendant No.1 and hence need no reply. The averments contained therein clearly show that the Defendant no.3 has exercised bonafides and due diligence and has also put the Plaintiff to notice. It is relevant to point out that in the letter dated 28.12.2011, filed as Plaint document 4, the Defendant no.3 has requested the Plaintiff to send any comments. The Plaintiff has not pleaded that it sent any comments whatsoever and it is therefore admitted that the Plaintiff, in December 2011 had no objection to the said report. The non-purchase of the report does not affect the credibility or truthfulness of the report in any manner.
8-11. Contents of para 8 to 11 regarding the distinction of insecticides from other products are misleading and are denied. It is respectfully stated that the Defendant no.3 has the necessary expertise to conduct the tests and the same have been done by the Defendant no.3 as per the Standard Testing Protocols. In fact the laboratories mentioned in paragraph 9 are the same laboratories which, as per the information of the Defendant no.1, are also used by Defendant no.3. The distinction of Insecticides being portrayed has no relevance to the present case. All the products which have been compared are Mosquito repellant vaporizers and are comparable products as liquid vaporizers have been compared vis-`-vis liquid vaporizers.
12. Contents of para 12 are misleading and are denied. The quantity of the vaporizer 35 ml vs. 45 ml is irrelevant. It is submitted that the quantity of any vaporizer is only for the purposes as to the longevity of any particular bottle/refill. The same has nothing to do with the efficacy of the products.
13-14.Contents of para 13 and 14 are the tests protocols and the list of centres approved by the WHO and Central Insecticide Board and needs no reply from Defendant no.1. Defendant no.3 being a Government recognized body to protect consumer interests has obviously taken care of conforming to all the relevant testing protocols and any allegation to the contrary is denied. Such tests have been performed by the Defendant no.3 even in the past without objection from the Plaintiff, especially when the Plaintiffs product was also ranked highly.
15. Contents of para 15 relate to the mosquito repellants vaporizer of the Plaintiff and hence need no reply. However anything that is contrary to the record are wrong and hence denied.
16-22.Contents of para 16 to 22 are wrong and denied. It is denied that the Plaintiffs brand GOOD KNIGHT enjoys an All India reputation or gives the competitive edge over the Defendant No.1. The sales figures given by the Plaintiff are also denied. The market shares of the Plaintiff which is purportedly based on the report of A.C. Nielsen are not within the Defendants knowledge. It is further denied that the GOOD KNIGHT ADVANCED ACTIVE PLUS product of the Plaintiff is a technologically advanced product as alleged. Further it is denied that the Plaintiff has overtaken the Defendant after August 2012. In fact, the plaint has been filed sometime in April 2012. Thus by no stretch of imagination it can be assumed the Plaintiff has overtaken the Defendant as on August 2012. The development methodology used for the Plaintiffs product is also denied. It is also denied that in the year 2012, the Plaintiffs product had overtaken the Defendant No.1s product. It is submitted that Business Standard had published an incorrect report which was purportedly given to them by M/s A. C. Nielsen. However on enquiry with M/s A.C. Nielsen, the Defendant No.1 has come to know that no such report was provided by them to Business Standard. The Defendant No.1 reserves its right to challenge such a misleading newspaper report as published by Business Standard.
23. Contents of para 23 are wrong and denied except that the product ALL OUT Power slider is a product of Defendant no.1. It is denied that the Defendant no.1s product is not effective as alleged. In fact, the Defendant no.1s product is far superior to the Plaintiffs product and in fact holds a major market share as compared to the Plaintiffs products.
24-25. Contents of para 24 and 25 are wrong and denied. It is denied that the Defendant no.1 has failed to disclose the full and complete facts as alleged. It is further denied that reasonable care has not been taken by the Defendant no.1. It would be clear from the advertisements itself that the Defendant has taken more than necessary care by mentioning the source of its information in each of its advertisements, whether it is the Voice Society, Brand Equity or the IMRB figures. The advertisements are completely fact-based and do not exaggerate the virtues of its own product nor do the advertisements disparage or denigrate anyone else. The allegations against Defendant nos. 3 and 4 are denied and it is for the said Defendants to respond to the same. In fact, the Defendant No.1 had in the impugned advertisement clearly stated that it is based on the report that has been published by the Respondent / Defendant no.3. As far as the methodology of the test reports are concerned, this Defendant has no control over the same and hence cannot reply. However, the Respondent / Defendant no.3 enjoys enormous credibility in the market and this fact ought not to be ignored. The credibility is to such an extent that the Plaintiff has also never questioned its reports in the past.
26-27.Contents of para 26 and 27 are wrong and denied. It is denied that the Defendant no.1 has sought to mislead the consumers and the public at large by the impugned advertisement. It is denied that there is any attack as alleged. It is submitted that the Respondent / Defendants no. 3 & 4 have ranked the Defendant no.1s product highly and the Defendant no.1 has merely communicated the said fact through the impugned advertisement. The advertisement is only an extract from the Consumer Voice magazine showing the test results which ranks the Defendant no.1 as the market leader. The tests conducted by the Respondents / Defendants no. 3 & 4 have been conducted under the Protocols approved by the Government of India as well as through Government approved test center.
28. Contents of para 28 are denied. It is denied that the incomparables have been compared by the Respondent / Defendant No.3. It is also denied that there is lack of transparency. In fact the Plaintiff did not avail of any opportunity given by the Respondent / Defendant no.3 as is evident from the letter already placed on record by the Plaintiff of December 2011.
29. The contents of para 29 are denied unless expressly admitted herein under. It is not denied that there are different variants of ALL OUT that are available in the market. It is also not denied that the refill packs comes in sizes of 35 ml and 45 ml. However it is submitted that the quantity of the refill packs has nothing to do with the efficacy of the product. The tests conducted by the Defendant No. 3 & 4 were for the efficacy of the products irrespective of the quantity of the packs. It is further submitted that the Defendant No. 3 & 4 had tested only the normal liquid vaporizers and not the slider machines. Further the tests were conducted on regular selling brands and their variants for each competing brands.
30 -33 The contents of these paragraphs relate to Defendant No.s 3 and 4 and the Defendant No.1 refers to and relies upon the response of the said Defendants.
34. The contents of paragraph 34 are wrong and denied. It is stated that the interpretations being given to the article are misleading in nature. The Defendant No.1 relies upon a complete reading of the article for its true purport and intent. The article has to be read as a whole and the averments by the Plaintiff merely extrapolate some parts of the article. The report is truthful, genuine and credible.
35. The contents of para 35 are wrong and hence denied. It is denied that the table is arbitrary and flawed or that it lacks reasoning. These are standard attributes on the basis of which tests are conducted.
36. The contents of para 36 are wrong and hence denied. It is denied that there is any contradiction as alleged.
37. The contents of paragraph 37 are denied. Defendant no.1 refers to and relies upon the response of the Defendants 3 & 4 as the Defendant no.1 does not have adequate details of the tests conducted.
38-43 The contents of paragraphs 38 to 43 relate to the details of the testing conducted by the Defendant nos. 3 and 4. Defendant no.1 refers to and relies upon the response of the Defendants 3 & 4 as the Defendant no.1 does not have adequate details of the tests conducted
44. Contents of para 44 are wrong and denied. It is not denied that the Defendant No.1 is aware of the test protocols laid down by the WHO. However, it is denied that the Respondent / Defendant no.3 has conducted any unscientific study as alleged. It is also denied that the Defendant No.1 has disparaged the products of the Plaintiff company as alleged. It is also denied that there are any glaring and patent deficiencies in the tests followed by the Respondents / Defendants Nos.3 and 4. It is also denied that there is collusion between Defendant No.1 and Respondent / Defendant no.3 to target the Plaintiffs products as alleged. It is also denied that any unfair method of advertising has been adopted by the Defendant No.1 resulting in unhealthy and unfair practice as alleged. In fact, it is reiterated that when the same very Defendant no.3 had previously shown the Plaintiff as a leading mosquito repellant, the Plaintiff appreciated the methodology and when the same very Defendant no.3 and 4 in the same methodology show the Plaintiff to be shown as not a leading manufacturer, the Plaintiff raises the objections of the test methodology. It is also denied that the Defendant no.1 has adopted any unfair method to attack, disparage or discredit the Plaintiffs brand and product or have indulged in any unhealthy and unfair tactics. It is also denied that the Defendant No.1 have made a mockery of comparison of incomparable products as alleged.
45. Contents of para 45 are wrong and denied. It is denied that the active ingredients in the Defendant No.1s ALL OUT product is higher as compared to the Plaintiffs products. The Plaintiff is making bald allegations without any basis or reports on record.
46. Contents of para 46 are wrong and denied. The report which the Plaintiff wishes to rely is also denied as the same lacks independence, credibility and is self-serving. Infact the Plaintiff is trying to mislead this Honble Court into believing that the test report as relied by the Plaintiff has compared the Plaintiffs product as against the Defendant No.1s product ALL OUT. In fact a mere reading of the report would reveal that the said report in fact conceals the identity of the products which are tested. There is nothing on record to show as to which are the two products or to show purchase nor have the samples been filed. It is extremely convenient for the Plaintiff to suppress material facts and rely upon a self-serving report which is totally denied. It is not even clear as to whether the two products are of Godrej Consumer Products, which is what it appears to say at the ABSTRACT. The report is vehemently denied as lacking any independence or credibility as the same appears to be at the behest of the Plaintiff itself. The laboratory which conducted the report may not have been informed that the said report has been used in legal proceedings. The report is titled as being CONFIDENTIAL and is sponsored by the Plaintiff. No permission has been placed on record from the Laboratory for using the said report in the present suit.
47-52.Contents of para 47 to 52 are wrong and denied. It is denied that the impugned advertisement has made any false and misleading facts with a view to disparage the Plaintiffs product as alleged or has adopted unfair means to boost its sales. It is also denied that the said advertisement amounts to malicious falsehood and slander of goods of its competitors as alleged. The Defendant No.1 has only stated in the advertisement regarding the report published by the Respondents / Defendants Nos.3 and 4. It is also denied that the impugned advertisements have been published to undermine and target the Plaintiffs product as alleged. It is also denied that the advertising campaign takes unfair advantage over the Plaintiff by making false and misleading claims as alleged. It is also denied that there is dishonest intention and malicious motive of the Defendant No.1 as alleged. The allegation of any doubts and suspicion created in the advertisement campaign by the Defendant No.1 is also denied. It is further denied that the impugned advertisement has been published with a view of usurp the market share of the Plaintiff as alleged. In fact, the Defendant no.1 is the leading manufacturer of the mosquito repellants and has a far greater market share than the Plaintiff. It is further denied that the advertisement campaign in any manner denigrates and defames the Plaintiffs products or makes a false and misleading representation. It is also denied that the impugned advertisement tarnishes the reputation of the Plaintiffs product, if any, by resorting to commercial disparagement as alleged. It is also denied that the impugned advertisement is false and misleading as also against public health and consumer interest.
53. Contents of para 53 are wrong and denied. It is denied that the impugned advertisement has targeted the Plaintiffs product or has led to commercial disparagement as alleged. It is denied that the reputation of the Plaintiffs products has been lowered by the impugned advertisement as alleged or the same has caused any loss and injury to the Plaintiff. It is also denied that the impugned advertisement has tarnished the image of the Plaintiff as alleged. It is also denied that the Plaintiff is entitled to any damages.
54. Contents of para 54 are wrong and denied. It is denied that the Defendant No.1 has disparaged the Plaintiffs reputation or has discredited and lowered the reputation of the Plaintiffs product as alleged. The Plaintiff is not entitled for any injunction as submitted. It is also denied that any loss and injury has been caused to the Plaintiff.
55. Contents of para 55 are wrong and denied. It is specifically denied that irreparable loss and injury would be caused to the Plaintiff and especially in view of what has been stated above.
56. Contents of para 56 are wrong and denied. It is specifically denied that the balance of convenience is in favour of the Plaintiff or that incalculable loss and injury will be caused to it in the circumstances stated above.
57. Contents of para 57 are wrong and denied. The Plaintiff is not entitled for any reliefs as prayed for.
16. The reading of the affidavit filed by the plaintiff / applicant shows, that the grievance of the applicant is that the newspaper advertisements, and tests reported in magazine amounts to unfair trade practice, slander of goods being malicious falsehood. The copy of the impugned advertisement shows, that the defendant no.1 has advertised its product ALL OUT, by making reference to the magazine of Consumer Voice, published by defendant nos.3 & 4.
17. Similarly, other grievance is regarding front page of Consumer Voice of February, 2012 edition.
18. The plaintiff has also placed on record the article published by the Consumer Voice in its February part, regarding the test conducted with regard mosquito repellants. In the Times of India, advertisement has been given by the defendant no.1 under the title Choose Wisely, wherein the report of Consumer Voice is used as piece of advertisement.
19. The grievance of the plaintiff / applicant therefore is that the newspaper advertisement attached with the typeset of papers filed with the plaint amounts to unfair trade practice, i.e. practice of promoting the sale of goods and provision of services, by adopting unfair or deceptive practice.
20. Reference is also made to the letter dated 28.12.2011 addressed to its Managing Director, informing them about the test conducted by defendant no.3, and to letter addressed on 06.02.2012 to the Quality Control of the applicant company.
21. It is the submission of the plaintiff / applicant, that insecticides is distinct from other products, being covered under the provisions of Insecticides Act, 1968 and Insecticides Rules, 1971. It is submitted, that the product is to be registered under Section 9 of the Insecticides Act, 1968 only after enquiry and satisfaction by the registration committee, which shows, that the proper guidelines are to be followed for testing the bioefficacy of the product and thereafter only licence is given for selling the product in India.
22. The contention of the learned counsel for the plaintiff / applicant therefore is that their product affirms to the standard, as envisaged under the provisions of Insecticides Act, 1968 and Insecticides Rules, 1971 framed therein.
23. It is also the case of plaintiff / applicant, that defendant nos.3 & 4 have not followed WHO guidelines for testing liquid vaporizers of different companies. That defendant nos.3 & 4 were not competent to test the liquid vaporizers of different companies. According to the plaintiff / applicant, the Central Insecticide Board (CIB) has circulated a list of test centers to carry out the test of mosquito repellents, and the defendant no.3 does not fall in the list.
24. It is further case of plaintiff / applicant, that the brand Good Knight has huge reputation and goodwill among consumers of India for its quality and effectiveness. The stand of the plaintiff/applicant is that the brand Good Knight is the registered Trademark under the Trade Marks Act for the household pesticides. Good Knight Advanced Activ+ was launched in January, 2007 and this was duly advertised to educate the consumers of its advantages and benefits for promotion of public interest and consumers interest.
25. It is submitted by the plaintiff / applicant, that Good Knight Liquid Vaporizer is an innovative and technologically advanced product, which was adjudged the product of the year and it took over the product of defendant no.1 after August 2012. That it was after the launch of the product of plaintiff/applicant, that defendants launched inferior products. That respondent nos.1 & 2 have failed to disclose full and complete facts and that there is fundamental flaw in not disclosing the product before testing, scoring and ranking them.
26. It is also the case of the plaintiff / applicant, that respondents have failed to observe the basic and reasonable care. The grievance is also that defendant no.1 could not use the slogan Jago Grahak Jago, as it is the slogan of the Government.
27. It is submitted by the plaintiff / applicant, that defendant no.3 does not have the requisite expertise for testing. Nor it is a CIB approved test centre. The comments have also been made with regard to the article of the magazine. It is the contention of the plaintiff / applicant, that the plaintiff / applicant has prima facie case and balance of convenience is also in favour of the plaintiff / applicant and it is likely to suffer irreparable loss, in case injunction is not granted.
28. The defendant nos.3 & 4 have filed a counter, wherein it has been stated, that defendant no.3 is a nonprofit making society, devoted for consumer education. It is involved in comparative testing of consumer products and evaluation of services for consumer education on the basis of transparent and scientific methodology without bias to any companys product.
29. The respondent no.3 is supported by many organizations, including International Organizations like WHO, Consumers International United Nations, Ford Foundation etc. It has also the support of various departments of the Government of India.
30. It is the case of the defendant no.3, that it is regularly conducting comparative testing of product by following the process noticed above. That defendant no.3 always follows the policy of transparency and as a matter of fact, on the request of plaintiff/applicant, some of its products were tested in their presence in the year 2005-2006. When the product of plaintiff/applicant was found to be better, the plaintiff/applicant appreciated the work of defendant no.3, therefore, now it is not open to the plaintiff/applicant to approbate and reprobate at the same time, to challenge the testing by Defendant no.3.
31. It is further case of the defendant no.3, that defendant no.3 has entered into the Memorandum of Understanding with the various Government Organization for testing the product for the benefit of consumers. That competence and credibility of defendant no.3 in the testing field has remained unchallenged by the stakeholders and manufacturers, including the plaintiff and appreciated by the consumers at large.
32. The stand of defendant no.3 is that the test report under challenge was carried out in a National Accredited Laboratory, namely, Arbro Pharmaceuticals Limited and only factual information has been given for consumer awareness. The test conducted was under the supervision of Shri P.N.Bhagwati, Retired Chief Justice of India, in his capacity as Ombudsman. On merits, the averments made in the counter are denied.
33. The contention of the learned Senior Counsel for the defendant no.3 was that injunction sought against respondent no.3 is not maintainable, as it goes against the very object of the society to carry out the test on consumer products for consumer awareness under the Memorandum of Understanding entered into between different organizations. It is contended, that the plaintiff neither has any prima facie case, nor balance of convenience is in favour of the plaintiff / applicant.
34. It is further contended, that in order to protect the interest of manufacturers etc, the magazine Consumer Voice itself stipulates that, All rights reserved. No article, story, test report can be reproduced from this magazine, without a written permission from the Editor. Material, test report, data from Consumer VOICE cannot be used for any marketing or promotional purposes.
All disputes are subject to the exclusive jurisdiction of competent courts in Delhi/New Delhi only.
Libel Insurance: The Consumer VOICE libel insurance policy extends to include typesetters, printers, distributors, co-publishers, and newspaper advertisements by VOICE. Therefore, merely because defendant nos.1 & 2 have issued some advertisement, which is not to the liking of plaintiff/applicant, no injunction as prayed for can be granted, against Defendant Nos.3 & 4 as prayed.
35. It was vehemently contended by the learned Senior Counsel for the defendant nos.1 & 2, that the suit of the plaintiff / applicant, as framed is not maintainable, as Section 61 of the Competition Commission Act, 2002, bars the jurisdiction of Civil Court to entertain such dispute.
36. Section 61 of the Competition Commission Act, 2002, reads as under:
61. No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
37. It is therefore contended, that reading of the pleading in the suit shows, that it is against issuance of advertisement by defendant no.1 in print media, which, according to the plaintiff, amounts to unfair trade practice, the matter can be adjudicated before the Advertising Standards Council of India (ASCI) or the Competition Commission of India. Once suit itself is barred, no prima facie is made out for grant of injunction.
38. It was also vehemently contended, that in 2005, when similar test was conducted, the same was not objected to by the plaintiff / applicant, specially when tests have been conducted in a National Accredited Laboratory. The maintainability of the suit is challenged, on the ground, that defendant no.1 has its registered office at Mumbai and has regional office at Chennai. The plaintiff, therefore has chosen to sue plaintiff no.1 at its regional office.
39. However, this objection deserves to be noticed to be rejected, as the suit can be filed against a company where it has a regional office, if the cause of action accrues within the jurisdiction of the Court, which admittedly did raise in view of advertisement issued in the newspaper circulating at Chennai.
40. It was also vehemently contended, that defendant no.1 is only C&F agent of defendant no.1 and is not concerned with issuance of advertisement. Furthermore, the advertisement cannot be questioned, as it does not amount to unfair trade practice.
41. Learned Senior Counsel for the defendant nos.1 & 2 placed reliance on the judgment of this Court in O.A.Nos.493, 494 and 495 of 2008 in C.S.No.451 and 452 of 2008, decided on 04.09.2008 (Colgate Palmolive (India) Ltd., vs. Anchor Health & Beauty Care Pvt. Ltd.), wherein, it was laid down, that civil suit action will lie if disparaging advertisement falls within the definition of unfair trade practice. This Court was pleased to lay down, that unfair trade practice could be one as defined in Section 36-A of MRTP Act, or Section 2(1)(r) of Consumer Protection Act, which includes the making false or misleading facts to disparage goods, service or trade of another person, such advertisement can be questioned by the complainant under Consumer Protection Act or before Consumer Protection Forum. A manufacturer or marketer whose goods are disparaged by another person in advertisement could also question it in the Civil Suit and that the Civil Court has jurisdiction to entertain such civil suit.
42. In view of the judgment on which reliance is placed, the objection raised by the defendant nos. 1 & 2 with regard to maintainability of suit deserves to be rejected.
43. Reliance was placed on this judgment to support the contention, that advertisement, which tends to enlighten consumer either by exposing falsity or misleading nature claim made by trade rival or by presenting comparison of merits (or demerits) of their respective product is for the public good and hence, cannot be taken to be an actionable wrong.
44. It was the contention of learned Senior Counsel, that advertisement cannot be said to be motivated by malice or false. It was vehemently contended, that the advertisement under challenge is for the benefit of society at large, and that this Court, in the judgment referred to above, was pleased to hold, that permitting two rival to expose each other in a truthful manner, will only result in consumer education.
45. The advertisement being for the education of consumers cannot be said to be an unfair trade practice so as to make out prima facie case in favour of the plaintiff / applicant.
46. On consideration, I find that the plaintiff / applicant has succeeded in proving that the advertisement issued by defendant / respondents 1 & 2 cannot be said to be free from motive and it is malicious. The reason for coming to this conclusion is that the very basis for issuing of this advertisement is the publication of article in the magazine Consumer Voice, which itself stipulated that no article, story, test report can be reproduced from this magazine, without a written permission from the Editor and it cannot be used for marketing or promotional purposes.
47. Admittedly, no written permission is granted in favour of defendant nos.1 & 2 to use the article for promotion of its product, therefore, defendant nos.1 & 2 cannot be permitted to issue advertisement to disparage / denigrate the plaintiff / applicants product or to print the part of article as advertisement or make a mention of it, by showing the product of plaintiff/applicant to be inferior to that of defendant / respondent. The plaintiff has therefore made out a prima facie case against defendant nos.1 & 2. The balance of convenience is also in favour of plaintiff/applicant and against defendant nos.1 & 2. Furthermore, the plaintiff is going to suffer irreparable loss, if further advertisement is not stayed.
48. Therefore, temporary injunction granted against defendant nos.1 & 2 is affirmed pending suit.
49. However, the plaintiff/applicant has failed to make out any prima facie case for grant of injunction, restraining defendant nos. 3 & 4 from conducting test for biological efficacy for liquid vaporizers or any other product, as this would defeat the very object of society. Furthermore, it will interfere in its right to function as per the Memorandum of Understanding entered between different organizations. The tests being conducted are for welfare of consumers, and it is yet to be established by leading evidence whether allegations against the tests conducted can be sustained in law.
50. For the reasons stated hereinabove, O.A.Nos.316 to 318 of 2012 are allowed as prayed for, whereas O.A.Nos.319 & 320 of 2012 are ordered to be dismissed.
51. A.Nos.2353 & 2354 of 2012 filed for vacation of interim injunction are ordered to be dismissed, on the ground of maintainability as also for the reason stated in allowing O.A.Nos.316 to 318 of 2012.
52. No costs.
11.01.2013 Index: Yes Internet: Yes ar Note: Issue order copy on 11.01.2013 VINOD K. SHARMA,J., ar Pre-Delivery Order in O.A.Nos.316 to 320 of 2012, and A.Nos.2353 & 2354 of 2012 in C.S.No.274 of 2012 2/2 11.01.2013