Monopolies and Restrictive Trade Practices Commission
Smithkline Beecham Pharmaceuticals ... vs Paras Pharmaceuticals Ltd. on 13 April, 2002
ORDER
C.M. Nayar, J. (Chairman)
1. The applicant/informant has filed an application under Sections 36B(d) and 36D of Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) for a false, misleading and disparaging TV advertising campaign in relation to 'Moov'. In its application, the applicant has prayed for an institution of an enquiry under Sections 36A, 36B(a) or Section 36B(d) and Section 36D of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) against the unfair trade practices adopted by the respondent as well to pass a cease and desist order under the Act.
2. It has also filed an interim relief application under Section 12A of the Act with the prayer that an ex-parte ad interim injunction against the respondent's advertisement on TV may be passed and it may be restrained from showing the TV advertisement pending the enquiry.
3. The informant/applicant is engaged in the manufacture and sale of Iodex in amber coloured bottle appearing to be black in colour with product inside it. The respondent is in the business amongst others in the manufacture of pain balm marketed under brand name "Moov" which is purple in colour.
4. The grievance of the applicant is based on the series of the advertisements issued by the respondent to promote its product. The latest advertisement in the series impugned in the application is the one -- wherein a young lady wakes up in the middle of the night with waist pain and starts searching for the pack of 'Moov'. She opens the drawer near the bed and picks up a black coloured bottle without a label, rejects it stating that, "This one is not for waist pains" and continues her search for Moov. In the bottom drawer finding pack of Moov, she is delighted and exclaims that "who is there in your house .... Waist pains or Moov." The contention of the applicant is that the bottle picked up by the lady in the video clip seemingly resemble Iodex which is a well established product in the market associated with amber coloured bottle with green label on it. It is a only amber coloured bottle in the rubefacient market which appears black with the product inside it. Instead of showing the band around the bottle, the respondent has very cleverly shown the green carton placed along with the voice over "this is not for waist pains". Iodex has been known in the market for giving long lasting relief from back ache, waist pains, muscle strains and sprains as printed on its label. The other major brands in the market are Amrutanjan (yellow), Zandu (white) and Moov (purple lable). The setting, colour and shape of bottle with a voice over 'not for waist pains' points out to the applicant's product. The view is reinforced if the aforesaid advertisement is viewed in a series of advertisements aired by the respondent from time-to-time. On 5.10.1996, an advertisement of Moov aired on TV showed that the other product with dark green label is "not for sprains". After the intervention of ASCI the respondent stopped to air the aforesaid advertisement and came out with another advertisement on 18.6.1998 referring to lodex as "Voh Kala Moch Wala Malam Dena" again denigrating the product of the applicant The advertisement was modified on assurance given to ASCI by the respondent. In the aforesaid back-drop the present advertisement on 5.4.2001 clearly disparages the applicant's product by making a false and misleading statement about it which is an unfair trade practice on its part, Iodex is one of the market leaders with 13% share in terms of value and 14% market share in volume sales in the rubefacients market as per ORG, rating given in terms of market share. The advertisement needs to be stopped as apart from harming the legitimate business interests of the applicant, it is also prejudicial to the interest of public.
5. The respondent's defence on the other hand is that there are a few dozen licensed manufacturers manufacturing rubefacient pack in black coloured bottle of the same shape having green coloured label. To name a few, they are products of Shreeji Remedies, Kumar Products and S.S. Pharmacy. The bottle shown in the advertisement has no green coloured band around it with the word Iodex embossed on it. The complant of the applicant against a similar advertisement aired in 1997 has been rejected by the Consumer Complaint Council. Rather the applicant itself came out with an advertisement in respect of Iodex Power Cream which directly disparaged the respondent's product i.e. Moov and the same had to be withdrawn on the assurance given by the applicant to the advertising standards Council of India on 24.9.2000. The product referred to in the advertisement is one which is mostly used by the roadside bone-setters or Unani specialists using malam. The advertisement has been duly approved by the Doordarshan and aired on TV. As the salient feature of green lable containing the name of the product is absent there is no ground for restraining the respondent from airing the advertisement on the TV.
6. We have been shown the impugned video clip which lasts for 20 seconds. The impression on the viewer is to be seen in the backdrop of a few essential facts, which need to be stated. Iodex brand is stated to have been marketed for more than 80 years. It is contained in the amber coloured bottle giving blackish colour when packed with the product. The bottle is got a short body with broad mouth with a green band around it embossed with words "Iodex". The cap is black coloured. It has thus three distinct features namely amber coloured bottle giving blackish colour when packed with the product, green band with the words embossed 'Iedex' and black coloured cap. These distinct features make it identifiable from the other products in the market namely Amrutanjan (yellow), Zandu (white) and Moov (purple). The product is known to be commonly used for aches and pains.
7. Out of 20 seconds for which the advertisement in question is aired, the offending part of the video clip does not seemingly last for more than a second or two. It is hardly time to register fully the features in details as and when frozen. It is just sufficient to capture the image of a black bottle and green carton startegically placed near the bottle clearly visible with a voice over that the same is not "for waist pain". The absence of green wrapper around the bottle is made up with the same coloured green carton against the background which highlights the colour. The particular setting of the colour and shape of the bottle with black cap on it and the voice over that it is not for 'waist pains' strongly points out to a major brand which could be none other than lodex.
8. The impression is further re-inforced if the advertising campaign of the two products in the past is referred to. On factual score, it appears that the advertisement of the respondent aired on Television on 5th October, 1996, wherein the reference to the other product being "not for sprains" with a dark green label was held to violate advertisement Code. So was the advertisement on June 18, 1998 wherein it was mentioned that "Voh kala Moch Wala Malam Dena" was held to denigrate the product. While these may not be relevant for deciding the issue regarding the disparaging of the applicant's product it does reflect the intention of the respondent as to the product it wants to target.
9. After having identified the product, the question is whether the statement made against the product is correct or false so as to disparage it. In this context, we usefully seek guidelines from the decision of the Hon'ble Supreme Court of India in a well known judgment in the case of Lakhanpal National Ltd. v. M.R.T.P. Commission and Another reported in (1989) 3 Supreme Court Cases 251, wherein Their Lordship held as under :
"When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such representation made by the manufacturer on the common man ? Does it lead a rasonable person in the position of a buyer to a wrong conclusion ? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language. Similarly a statement, which may be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is ? The position will have to be viewed with objectivity, in an impersonal manner."
10. Thus what is to be seen is whether the statement though correct in the literal sense has an element of misleading the buyer by tricky language or visual image. In other words, the impression it creates on the mind of a reasonable person in a position of a buyer. The message conveyed in the present visual is that the product shown in the bottle is not helpful in "waist pains" whereas the Moov is. The claim of the applicant as printed on its wrapper on the other hand is that its product gives lasting relief from back ache, waist pain (underlined by us), muscle and sprains. It is thus direct denial of the claim of the applicant. While falsity and truth of the statement of the respondent both in respect of its own product and that of the one shown in the bottle is to be tested on the strength of evidence, it has all the potentiality of misleading the buyer in showing the product as inferior to which there is a clear hint accompanied by a gesture and words. While one is allowed to puff its product and claim it to be one of the best in the market, it cannot belittle the other by a mere statement which is bound to have effect on the impressionable sect of people watching the TV which has more or less become a house-hold gadget. This certainly constitutes an unfair trade practice insofar as it disparages the product of the applicant and is squarely covered under Section 36-A(l)(ix) of the Monopolies and Restrictive Trade Practices Act, 1969. Thus, prima fade, there is a case in favour of the applicant.
11. While the continuance of the advertisement in its original form is likely to affect the interests of the applicant for which there is no appropriate compensation, the same may not affect the respondent's product in view of another advertisement simultaneously aired on TV. The latter without comparing its product with any other product again conveys the same message that "who is there in your house ..... Waist pain or Moov".
12. The balance of convenience also tilts towards the applicant. It is true that the advertisement has been treated as a commercial speech falling with the purview of right to freedom of speech as enshrined under Article 19(1) of the Constitution of India and the respondent has a right to enjoy it. However, while preserving the right of one party, one has also to protect the right of another against injury by its violation. Rights of both the parties need to be weighed to find out to which side the balance of convenience lies. In view of the backdrop of series of advertisements targeted against the product of the applicant and a few more currently aired on TV, at least the offending part of the advertisement needs to be modified if not altogether stopped from being aired.
13. We would, therefore, direct the respondent to modify its advertisement under reference by changing the colour of the bottle appearing as black.
14. Interim injunction under Section 12-A in terms of above is passed and the respondent is directed to comply with the directions within four weeks of the receipt of the orders. Affidavit of compliance shall be filed within two weeks thereafter.
On the facts and circumstances of the case we do not find it necessary to institute any enquiry under Section 36A, 36B(a) or Section 36B(d) and Section 36D of the Act against the respondent.