Madras High Court
Gillette India Limited vs Reckitt Benckiser (India) Private ...
Author: Abdul Quddhose
Bench: Indira Banerjee, Abdul Quddhose
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 14.03.2018
DELIVERED ON: 19.04.2018
CORAM:
THE HONOURABLE MS.JUSTICE INDIRA BANERJEE, CHIEF JUSTICE
and
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
O.S.A.Nos.35 to 39 of 2018
and C.M.P.Nos.2116 to 2124 of 2018
Gillette India Limited,
The Manor, 3-B, 3rd Floor,
31/14 A, College Road,
Thousand Lights,
Chennai 600 006
Represented by its Authorized Signatory,
Siddhant Sharma ... Appellant
Vs.
Reckitt Benckiser (India) Private Limited
227, Okhla Industrial Estate, Phase-III,
Okhla, New Delhi 110 020
Represented by its Authorized Signatory,
Mr.Rajesh Kumar Jha ... Respondent
Prayer: Original Side Appeals filed under Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of the Letter Patent Act against the Order and Decretal Order dated 10.11.2017 passed in Original Application Nos.977 to 981 of 2017 in C.S.No.768 of 2017 on the file of the Original side of High Court of Judicature at Madras.
For Appellant : Mr.P.S.Raman, SC
for Mr.Satvick Varma,
Mr.Madhan Khoola
For Respondent : Mr.Chander Lall, SC
for Mr.E.Veda Bagath Singh
C O M M O N J U D G M E N T
These appeals have been filed by the appellant under Clause 15 of the Letters Patent against the Common Order dated 10.11.2017 passed by the learned Single Judge in O.A.Nos.977 to 981 of 2017 in C.S.No.768 of 2017. C.S.No.768 of 2017 filed by the respondent in a disparagement suit.
2. The respondent plaintiff is a manufacturer of depilatories (Hair Removal Creams), whereas the appellant is a manufacturer of Razors. Even though, the product of the appellant and the respondent plaintiff are different, both depilatory creams and razors are used for removal of unwanted hair from the human body. While the appellant's product is constituted of blades with protective coverings and a handle, the respondent plaintiff's product is a cream.
3. The case of the respondent plaintiff is that the appellant has, in its print and in its electronic audio visual advertisement, denigrated and disparaged the product VEET manufactured by the respondent.
4. The advertisement posted by the respondent plaintiff in the print media, under challenge in the suit is reproduced herein below:
5. The respondent plaintiff has also impugned an advertisement issued by the appellant, inter alia, in the electronic visual media by way of a thirty second video clip, which is depicted herein below along with still photographs:
VOICE: Lets silence the comments and the compromises VOICE: Lets call out the hair removal creams that come in all sizes VOICE: Tall, thin short. Even the 10 and 20 gram sorts Disclaimer super: TG acid refers to Thioglycolic acid VOICE: So open your eyes, read before use VOICE: Dont squeeze, dont spread VOICE: Dont repeat the abuse.
Disclaimer super: Based on analysis and technical tests which shows Ph levels as high as 12 on account of some ingredients in hair removal creams.
VOICE: Urea and chemicals as strong as bathroom cleaners VOICE: Oh yes, hair removal creams are filled with it VOICE: So do yourself a favor. Get some care for your curves.
Disclaimer super: Based on analysis and technical tests which shows Ph levels as high as 12 on account of some ingredients in hair removal creams.
VOICE: Coz its love not strong chemicals that you deserve.
6. In order to appreciate the impact of the advertisement in, inter alia, the electronic audio visual media, it would be necessary to actually view the video clip, which is of 30 seconds duration, along with along with the histrionics, the voice modulation, language used, etc. The video clip would necessarily have to be judged by its overall impact.
7. The learned Single Judge has, by the order dated 10.11.2017 under appeal, allowed the interlocutory applications filed by the respondent and made absolute the earlier interim orders restraining the appellant (being the defendant/respondent before the Single Bench), its Directors, Principals, Proprietors, Partners, officers, employees, agents, distributors, franchisees, representatives or assigns from issuing or telecasting the advertisements impugned or in any other manner disparaging the goodwill and reputation of the respondent plaintiff and its products sold under the trademark VEET in any other advertisements or in any media, including the electronic media, social media, and/or print media or making comparison or importing direct or indirect reference to hair removal creams, thereby conveying a message to the public that the hair removal creams are harmful to the skin or contain chemicals that are harmful to the skin or in any other manner whatsoever denigrating the hair removal creams pending disposal of the suit. The learned Single Judge directed the parties to go for trial, clarifying that the observations made in the order under appeal were prima facie in nature and would not affect the trial.
8. By an interim order dated 21.02.2018, in CMP Nos.2116, 2118, 2120 and 2122 of 2018 in these appeals, this Court granted a partial stay of the operation of the order under appeal insofar as it relates to the print advertisement depicted above earlier, which is still in force.
9. Mr.P.S.Raman, learned Senior Counsel appearing on behalf of the appellant submitted that neither of the advertisements issued by the appellant specifically targeted VEET, the hair removal cream manufactured by the respondent plaintiff. The advertisements only educate the public on various features of hair removal creams.
10. Taking this Court through the express words used in the video clip, Mr.Raman emphatically argued that there was nothing which could be construed as any derogatory comment on the product of the respondent plaintiff. The advertisement was by way of an advisory cautioning the consumers to read the instructions and/or disclaimers carefully before using the depilatory creams.
11. Mr.Raman argued that the reference in the advertisements to strong chemicals does not refer to the depilatory cream of the respondent plaintiff nor does the expression Urea and chemicals as strong as bathroom cleaners refer to the depilatory cream of the respondent plaintiff.
12. Mr.Raman argued that the appellant has not denigrated the product of the respondent plaintiff nor conveyed the message that the respondent plaintiffs products are harmful or hazardous.
13. Mr.Raman argued that there was, in any case, truth in what was advertised. The advertisements were based on scientific data and reports. The advertisements would, therefore, not amount to denigration or disparagement of the respondent plaintiffs products. The alkaline content of hair removal creams mentioned in the advertisement was also based on scientific data.
14. In support of his contention that the advertisements were truthful and only sensitized potential users against the harmful effects of depilatories, Mr.Raman referred to the disclaimers in the website of the respondent plaintiff which are as follows:
(i)Do not exceed 10 minutes total application time.
(ii)Suitable for use on the legs, arms, underarms & bikini line. NOT SUITABLE for use on head, face, eyes, nose, ears, around the anus, genitals and nipples or any other body parts.
(iii)Do not use on varicose veins, scars, moles, spotty, broken, irritated, sun burnt skin or on skin that has had an adverse reaction to hair removal creams in the past. Always leave 72 hours between hair removal sessions.
(iv)Check with your Doctor before using if you are on any medication which can affect the skin, if you suffer from any skin related disorder, or if you have a condition which may affect the skin.
(v)Before every use, TEST YOUR SKIN REACTION by applying and removing the product to a small part of the area you wish to treat, following the directions for use. If after 24 HOURS there is no adverse reaction, continue to use.
(vi)If you experience any smarting/tingling during use, remove the product immediately and rinse thoroughly with cold water. If a burning sensation persists, seek medical advice.
(vii)Skin may be more sensitive for a short time, so avoid scratching.
(viii)After use we recommend waiting 24 hours before using antiperspirant, or any other perfumed product, using artificial tanning equipment, swimming or sunbathing.
(ix)KEEP OUT OF REACH OF CHILDREN.
(x)In case of ingestion, seek medical advice immediately and show outer pack.
(xi)Avoid contact with eyes. In case of contact with eyes, rinse immediately with plenty of water and seek medical advice.
(xii)Contains alkali and thioglycolate.
(xiii)Product may cause surfaces to become slippery.
(xiv) Avoid spillage on carpets, clothes and flooring.
15. Mr.Raman argued that although there were 12 to 14 disclaimers in respect of the depilatory creams of the respondent plaintiff, only 5 disclaimers were printed on the sachet containing the depilatory creams. It was, therefore, felt necessary for the appellant to draw the attention of potential users to the other disclaimers, including the fine print disclaimers.
16. Mr.Raman referred to the general warnings for safe removal of hair through razors, which are: Razors: Shaving hair only when its wet and shaving in the direction in which the hairs lie, can help lesson skin irritation and cuts. The general warnings in respect of depilatories are that, depilatories which are available in gel, cream, lotion, aerosol, and roll-on forms are highly alkaline (or, in some cases, acidic) formulations that affect the protein structure of the hair, causing it to dissolve into a jellylike mass that the user can easily wipe from the skin. Consumers should carefully follow instructions and heed all warnings on the product label. For example, manufacturers typically recommend conducting a preliminary skin test for allergic reaction and irritation. Depilatories should not be used for eyebrows or around eyes or on inflamed or broken skin.
17. Mr.Raman argued that the Food and Drug Administration of the United States of America had received reports of burns, blisters, stinging, itchy rashes, and skin peeling associated with depilatories and other types of cosmetic hair removers.
18. Mr.Raman emphatically argued that the Material Safety Data Sheet of the respondent plaintiff would reveal that the respondent plaintiff's hair removal cream was hazardous. Mr.Raman emphasized on Regulation 15 of the Material Safety Data Sheet of the product of the respondent plaintiff, which is set out herein below:
Regulatory Information:
Superfund Amendments and Reauthorization Act of 1986 (SARA) Hazard categories Immediate Hazard Yes Delayed Hazard- Yes Fire hazard- Yes Pressure Resort- Yes Reactivity hazard -No
19. Mr.Raman submitted that Thioglycolic Acid (TG Acid) and urea are hazardous due to their alkaline nature. All depilatory creams contain the aforesaid ingredients. The impugned advertisements, therefore convey only the truth. Mr.Raman argued that truth is a complete defence in itself in a disparagement action. There are overwhelming materials in the public domain which establish the harmful nature of depilatory creams, and thus support the defence of the appellant of there being truth in what is conveyed through the advertisements.
20. The 30-second video clip was played in the open Court by counsel appearing for the appellant. Learned Senior Counsel for the appellant, Mr.Raman argued that the injunction granted by the learned Single Judge amounts to a gag order which is not permissible in law.
21. Mr.Raman emphasized that the appellant and the respondent plaintiff are competitors in the same area of operation, dealing with different products. While the appellant is a market leader in razors, the respondent plaintiff is a market leader in depilatory (hair removal) creams. The appellant has the right in law to issue advertisements demonstrating the superiority of its product compared to depilatory creams.
22. Mr.Raman submitted that, in view of the injunction order, the appellant has been restrained from making advertisements, comparing razors and depilatory creams, but the respondent plaintiff is with impunity issuing advertisements comparing its depilatory creams with razors of other companies, including the appellant. The injunction order has, thus, resulted in discrimination.
23. Mr.Raman submitted that the finding of the learned Single Judge that the spatula shown in the advertisement of the appellant is that of the respondent plaintiff is incorrect. The learned Single Judge erred in granting injunction on the basis of an erroneous finding that the spatula in the advertisement is that of the respondent plaintiff, which led the learned Single Judge to wrongly conclude that the appellant had denigrated the products of the respondent plaintiff.
24. Mr.Raman took this Court through the findings of the learned Single Judge extracted hereunder:
16. Having viewed the advertisement and analysed the story board, it is clear that the thrust of the advertisement is more to address the alleged vices of depilatory creams rather than the virtues of razors. The story board proceeds thus:
17. The advertisement opens with the setting of a dark boxing ring. The narrator states 'Lets silence the comments and the compromises'.
18. The protagonist is shown entering the boxing ring and says 'Lets call out the hair removal creams that come in all sizes...Tall, thin, short, even that 10 and 20 grams sort.'
19. The protagonist walks carefully into a room full of mannequins holding depilatory creams, one of which is in a pink and white tube,(identical to VEET). One of the mannequins holds a spatula identical in shape and configuration to the spatula accompanying VEET which enjoys statutory design protection. The protagonist, holding a magnifying glass, closes up on the tube of depilatory cream with the ingredients marked thereon bearing UREA, TG ACID and other STRONG CHEMICALS.
Thereafter, the protagonist states So open your eyes...read before use...Dont squeeze, dont spread, dont repeat the abuse. The camera zooms in from the cream to a cloud of chemicals with smoke emanating from the pond. The protagonist is shown walking very carefully on stones in the pond stating Urea and chemicals is strongest bathroom cleaners (sic as strong as bathroom cleaners) and entering a bathroom and saying Oh yes! hair removal creams are filled with it. The writing on the screen states 'Based on analysis and Technical test which shows pH levels are high as 12 on account of some ingredients in hair removal creams'.
The protagonist then swipes tubes of cream from a counter stating 'so do yourself a favour.. get some care for your curves'. The protagonist is then shown using a razor and while walking from an acidic floor to fresh green grass states 'coz its love not strong chemicals you need'.
The advertisement then ends with a screen showing the defendant's Venus branded razor and a message No to STRONG CHEMICALS. Yes to smooth skin.
20. The argument that 'VEET' was not specifically identified in the advertisement and that the same was generic in nature is not acceptable for the reason that the products identical to tube of VEET as well as the Pink spatula do find place in some of the screen shots as extracted above. In any event, in so far as the attack is clearly and admittedly on depilatories in general, in respect of which Reckitt holds 48.9% market share, and even an indirect reference to the product would be sufficient to constitute disparagement. A casual viewing of the advertisement makes it apparent that a tube/spatula deceptively similar to the rival product was displayed in four frames.
25. Mr.Raman emphatically argued that the findings of the learned Single Judge were incorrect and not based on facts. The pink colour in the products of the respondent plaintiff are different from the pink colour displayed in the advertisement of the appellant. Mr.Raman argued that the respondent plaintiff cannot have any monopoly over colours and cannot, therefore, complain against the depiction of pink tube or spatula or white cream.
26. Mr.Raman further argued that the design protection available for the respondent plaintiff was only for the spatula. The spatula displayed in the advertisement of the appellant is, according to Mr.Raman, a computer generated blue and not pink spatula. That spatula displayed in the advertisement is a blue and not a pink spatula.
27. Mr.Raman took us through the findings of the learned Single Judge in paragraphs 25, 26, 32, 33 & 34 of the order under appeal, which are extracted hereunder:
25. Courts have consistently held that while it is permissible to glorify one's own product and engage in 'puffing' thereof, slander of a product is impermissible. This, in my view, is what has been engaged in the present case. Quite apart from the references to the hazardous effect of the chemicals used and the manner of presentation of the visuals itself, the information presented in regard to the pH levels of depilatories being equal in strength with that of a bathroom cleaner also, prima facie, appear to be incorrect. In any event, the overall and lasting image that is created is one where the viewer comes to doubt the safety in using depilatory creams.
26. Then again, the pH of a depilatory cream, indicating its acidity/alkalinity, is projected to be in excess of acceptable levels for use. A test report issued by a private laboratory reveals that the pH of all brands of depilatories is in the range of 10 to 12.5. This piece of information, seen in the light of the fact that the floor cleaner contains a pH of 13.1 is used to illustrate the harmful nature of hair removal creams in general. Reliance is also placed on a report of Danish Environmental Protection Agency, which, while referring to chemical depilatories, observes that TG Acid is 'toxic' and cautions in general about the use of substance with high PH value. A consumer update issued by United States contains a note of caution that the instructions on depilatory creams should be heeded carefully emphasizing yet again the harmful nature of the product in general. The recommendation cautions against indiscriminate use and emphasizes that the directions printed on the product be carefully followed. While relying on the aforesaid reports to buttress its submission that it was only projecting factual information in the advertisement, Gillette would also point out not all sachets of VEET contain a label with the mandatory statutory warning. This allegation is dispelled by Reckitt producing samples of the product with the packaging containing the mandatory caution as well as instructions for use.
32. In the present case, Gillette has placed on record material to establish that TG Acid is an ingredient that is to be used with caution. So be it. However, the insinuation in the advertisement is that it is a substance used only in the harshest cleaning materials not fit for use in products intended for use on one's person. Clearing a twisting of facts and not a faithful representation of science. Then again, urea, as an ingredient does not find place in the list of harmful substances as tabulated by the BIS.
33. Courts have often applied the theory of dominant purpose to determine the true purport of an enactment. This test is equally applicable to determine disparagement as well and if applied to the present case would clearly point to the offending advertisement as being an attempt to bring down a rival product rather than promote ones own. The purpose of an advertisement is primarily to promote a product and provide information in relation thereto. Any other information relevant to such promotion can only be incidental and peripheral at best. The thrust of an advertisement has thus to be on the virtues of the product being advertised rather than the vices of rival products, even assuming that such projected vices are scientific and true. A balance has to be struck between the two factors and this, in my view, will be the test to determine whether the advertisement impugned in the present case is informative or disparaging.
34. The test of dominant purpose has been oft applied in various branches of the law to determine the true purport or import of an act or a set of circumstances. The word advertisement has to be understood in the popular sense to connote notice given in a manner designed to attract public attention. Seen in the context of a commercial entity, search notice will be in respect of its product or service.
28. Mr.Raman submitted that the learned Single Judge has wrongly applied the dominant purpose test, which would not apply to disparagement suits. In support of his submission, Mr.Raman relied upon a judgment of a learned Single Bench of this Court in Kaleesuwari Refinery Pvt. Ltd. vs. M.K.Agrotech Pvt. Ltd., reported in Manu/TN/0403/2016, and drew the attention of this Court to the relevant parts of the said judgment which trace the law relating to disparagement by referring to decisions of the High Courts and the Supreme Court, which are extracted hereunder:-
6. The learned Senior Counsel for the applicant contended that the applicant has been manufacturing sunflower oil by using TBHQ for refining, which is permitted by law. The respondent, without any basis, issued disparaging advertisements to malign the product of the applicant and other market leaders as one causing cancer. The learned Senior counsel by placing reliance on the analysis report, contended that the product manufactured by the applicant satisfied the test indicated in the Food and Safety Standards Act and as such, the respondent erred in giving disparaging advertisements. According to the learned Senior counsel, the respondent issued misleading and deceiving advertisements to promote its product. The advertisement was given in violation of the Food and Safety Standards Act, 2006 and as such, they should be injuncted.
10. In case attempt was made by the defendant to show that the products of the plaintiff are all inferior quality, a cause of action would arise to file a suit either for a restraint order or for damages. In case the defendant is in a position to prove that there is nothing in the advertisement which is untrue or misleading, and attempt was not made to brand the product of the plaintiff as inferior quality, no action for disparaging would lie. The Courts have, in a catena of decisions, held that if an advertiser makes a consumer aware, of the truth, there is nothing wrong in that. The reason is, a party cannot be held responsible for libel when all that has been told is truth, which is a complete defence against any assault or challenge, regardless of any damage sustained as a result of it.
11.The applicant admitted that they are using the commercial processing method for refining sunflower oil. The applicant is using anti oxidants to prevent deterioration.
12. The respondent has produced materials to show that some of the countries like Japan, Romania, Sweden and Australia have already banned chemically processed sunflower oil.
.....
16. Similar question came up for consideration before the Delhi High Court in Dabur India Ltd. v. Wipro Ltd., MANU/DE/1151/2006 : 2006 (32) PTC 677 (Del). Madan B. Lokur, J. (as His Lordship then was) observed that in cases of this nature, degree of disparagement must be such that it should tantamount to defamation. While vacating the injunction granted earlier, the Court observed:-
"23. In comparative advertising, a consumer may look at a commercial from. a. particular point of view and come to a conclusion that one product is superior to the other, while another consumer may look at the same commercial from another point of view and come to a conclusion that one product is inferior to the other. Disparagement of product should be defamatory or should border on defamation a view that has consistently been endorsed by this Court. In other words, the degree of disparagement must be such that it would tantamount to, or almost tantamount to defamation.
25. A manufacturer of a product ought not to be hyper-sensitive in such matters. It is necessary to remember that market forces are far stronger than the best advertisements. If a product is good and can stand up to be counted, adverse advertising may temporarily damage its market acceptability, but certainly not in the long run."
17. The Supreme Court in Tata press Ltd. v. Mahanagar Telephone Nigam Ltd. and Ors. MANU/SC/0745/1995 : 1995(5) SCC 139 held that commercial advertisement would come within the ambit of Article 19(1)(a) of the Constitution of India. The Supreme Court said:--
"22. Advertising as a commercial speech" has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of commercial speech. In relation to the publication and circulation of newspapers, this court in Indian Express newspaper's case, Sakal paper's case and Bennett Coleman's case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1) (a) on the aspects of propagation, publication and circulation.
23. Examined from another angle, the public at large has a right to receive the "Commercial speech". Article 19(1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of "commercial speech" may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.
24. We, therefore, hold that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution."
18. The learned Senior Counsel for the applicant by placing reliance on the judgment of the Supreme Court in Centre for Public Interest Litigation v. Union of India and others MANU/SC/0089/2012: 2013 (16) SCC 279, contended that section 24 of the FSS Act prohibits misleading advertisement and as such the advertisement given by the respondent violates the mandatory provision. Though the provision prohibits misleading or deceiving advertisement relating to food the proviso permits the opponent to prove that the advertisement was based on scientific materials.
19. Truth is always a defense in an action for libel. Such being the position it would not be possible to injunct the respondent. It is more so on account of the materials produced by the respondent to show that the claim made in the advertisement was supported by relevant materials. I, therefore, do not find any reason to injunct the respondent, pending disposal of suit.
29. Mr. Raman submitted that just because a product has been approved by Food Safety and Standards Authority of India (FSSAI), it does not mean that the product is not harmful to health. BTHQ is approved by FSSAI but it is 'carcinogenic'. According to him, there is no falsehood in the advertisement of the appellant.
30. Mr.Raman also submitted, on instructions from the appellant, that the appellant is willing to make minor modifications like removing all hair removal creams in the advertisement and replacing it with most hair removal creams. He prayed that this Court be pleased to set aside the order dated 10.11.2017 passed by the learned Single Judge in O.A.Nos.977 to 981 of 2017 in C.S. No.768 of 2017 and allow the instant appeals.
31. Mr.Satvick Varma appearing with Mr.Raman on behalf of the appellant made submissions on commercial free speech. Supporting the arguments advanced by Mr.Raman, Mr.Varma submitted that any restriction on the advertisement of the appellant would amount to violation of fundamental rights under Article 19 (1)(a) of the Constitution of India. Right to Free Speech includes Right to Commercial Free Speech. Only when an advertisement contains falsehood, restrictions can be imposed. Puffery alone would not attract restrictions on the advertisement being displayed. There must be denigration of the product.
32. Mr.Varma argued that the intent of the major part of the advertisement was to educate the customers on shaving products. In support of his argument, Mr.Varma relied on the judgment of the Supreme Court in Tata Press Ltd. Vs. Mahanagar Telephone Nigam Limited and Ors, reported in MANU/SC/0745/1995. The relevant paragraphs of the judgment of the Supreme Court in Tata Press Ltd. Vs. Mahanagar Telephone Nigam Limited and Ors, supra, have been extracted in the judgment of the Single Bench of this Court in Kaleesuwari Refinery Pvt. Ltd. vs. M.K.Agrotech Pvt. Ltd., supra, set out earlier in this judgment. The Supreme Court emphasized the importance of advertising as cornerstone of the economic system, which is a source of revenue for the media. The Supreme Court held that one of the important facets of advertising as a commercial speech is dissemination of information regarding the product. The Supreme Court held that commercial speech was part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.
33. Mr.Varma also cited the Division Bench judgment of the Delhi High Court in Dabur India Ltd., vs Colourtek Meghalaya Pvt., Ltd., reported in 2010 SCC Online Del 391 and submitted that if the statement in the advertisement is true, the advertiser is protected under Article 19(1)(a) of the Constitution of India.
34. Mr.Varma also referred to the recent judgment and order of the Hon'ble Supreme Court dated 18.01.2018 in W.P.(Civil) No.36 of 2018 (Viacom 18 Media Vs Union of India). The part of the judgment relied upon by the learned counsel is reproduced here under:
17. In this regard we may reproduce a passage from an order of this Court in Nachiketa Walhekar v. Central Board of Film Certification [Nachiketa Walhekar v. CBFC, (2018) 1 SCC 778] passed on 16-11-2017: (SCC p. 779, para 5) 5. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of the expressive mind. The human history records that there are many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought-provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation, that has to be as per the prescription in law. In view of the aforesaid, we direct that there shall be stay of operation of the notifications and orders issued by the respondent States and we also restrain the other States to issue notifications/orders in any manner prohibiting the exhibition and we are sure, the State authorities concerned shall keep para 27 of the judgment in Prakash Jha Productions [Prakash Jha Productions v.Union of India, (2011) 8 SCC 372] in mind which clearly lays down that it is the paramount obligation of the State to maintain law and order. It should always be remembered that if intellectual prowess and natural or cultivated power of creation is interfered with, without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilisation corrode.
35. Mr.Raman concluded the arguments on behalf of the appellant with the submission that the advertisement of the appellant was only an artistic depiction of depilatory creams and no particular reference was made to the product of the respondent plaintiff. The advertisement is only a commercial speech and is protected under Article 19(1)(a) of the Constitution of India. The advertisement is neither false, nor misleading, nor unfair, nor deceptive. Grey areas in the advertisement, if any, only amount to glorifying the appellants own products and cannot be construed as misrepresentation of facts.
36. On the other hand, Mr.Chander Lall, learned Senior Counsel appearing for the respondent plaintiff submitted at the outset that in an appeal, this Court should not interfere with the exercise of discretion by the Single Bench. Relying upon the judgment of the Supreme Court in Wander Ltd. and Another vs. Antox India P. Ltd., reported in 1991 (11) PTC 1(SC), Mr.Chander Lall submitted that in appeals against an interlocutory order, the Appellate Court should not interfere with the exercise of discretion of the Court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions.
37. Mr.Chander Lall submitted that in granting an order of injunction in favour of the respondent plaintiff, the learned Single Bench did not exercise discretion arbitrarily or capriciously or perversely or ignoring any settled principles of law. This Court cannot, therefore, reverse the findings of the learned Single Judge. This Court should also direct the parties to go for trial.
38. Mr.Chander Lall further submitted that pH level below 7 is Acidic and pH level above 7 is Alkaline. The pH level of the respondent plaintiff's product is about 10. Therefore, it is 'alkaline'. A product is not harmful just because it is alkaline in nature.
39. Mr.Chander Lall argued that the Analysis Report by Danish Environmental Protection Agency and the Material Data Safety Sheet of Denmark relied upon by the appellant to contend that the chemicals used in depilatory creams are harmful and beyond the prescribed limits, actually support the case of the respondent plaintiff.
40. Mr.Chander Lall argued that as per the Danish Report, high alkalinity (Higher pH levels) is required to break the keratin in hair and thus remove the same. In Denmark, the maximum pH level permitted for depilatory creams is 12.7, which is similar to the level fixed by Bureau of Indian Standards in India, which is pH level of 11 to 12.7. Alkalinity in depilatory cream is, therefore, permissible and in fact required for its function.
41. Mr.Chander Lall argued that, as claimed by the appellant, the product of the respondent plaintiff has a pH of 11.5, which is within the limit prescribed under BIS as well as under global standards. Mr.Chander Lall further argued that Paragraph 4.1.4 of the Danish Report clearly states that cosmetics are not covered by the statutory order. There was, therefore, no requirement for cosmetics to be labelled as dangerous.
42. Mr.Chander Lall submitted that for Hair Removal products the content of thioglycolic acid in the finished product must be less than 5%. He drew the attention of this Court to paragraph 5 of the Danish Report, which states that Regardless of the type of hair removal product one chooses to use, it is very important to follow the entire directions of the use carefully. It is also important to be aware of how one's skin reacts, both during and after treatment. Unpleasant effects such as burning, stinging or itching are not meant to occur in connection with use of these products. If unpleasant effects are experienced, the treatment must be immediately discontinued and the hair removal product must be removed using plenty of lukewarm water.
43. Mr.Chander Lall submitted that the advertisement of the appellant is mischievous. The advertisement directly or indirectly denigrates the product of the respondent, by i.misleading insinuations about the alkaline content and the acidic value of hair removal creams.
ii.Stating that all hair removing creams have strong chemicals.
iii.Showing a floor, where fumes come out.
iv.Showing Urea and TG Acid as chemicals, when Urea is not a chemical and is not harmful.
v.Depicting women walking in fumes.
vi.Comparing the depilatories with toilet cleaners.
44. Mr.Chander Lall submitted that the respondent plaintiff produces 80% of the depilatory creams sold in the market and any negative aspersion against depilatory creams in general, in effect, disparages the products of the respondent plaintiff.
45. Mr.Chander Lall submitted that TG Acid is not a banned item. The product of the respondent plaintiff has been cleared by all the statutory Authorities, including the BIS.
46. Mr.Chander Lall submitted that the advertisement of the appellant for the electronic visual media is offensive and derogatory. The advertisement begins with a setting of a dark boxing ring, where the voice calls out to everyone Let's silence the comments and the compromises, denoting thereby that by using VEET branded product, a consumer has to 'compromise'. The setup of a dark boxing ring is to scare the users of hair removing cream by creating an environment of dinginess and darkness. The protagonist is then shown entering the boxing ring and holding the microphone and saying Lets call out the hair removal creams that come in all sizes...Tall, thin, short, even the 10 and 20 grams sort. At this juncture, the protagonist is shown kicking and jumping into a room full of mannequins and walking very carefully so as to give an impression that being surrounded by these mannequins which depict users of the respondent plaintiff's hair removing cream is repulsive.
47. Mr.Chander Lall argued that the mannequins have been used to impress upon viewers that hair removal creams, including VEET hair removal cream of the respondent plaintiff, ought not to be used on, living person (as it is harmful for their skin). The protagonist is then shown walking past some mannequins holding hair removing creams. The mannequins appear like dead bodies. These mannequins are strewn around and are seen reaching out to the protagonist using the defendant's Gillette Venus razor. Such depiction is clearly intended to portray the use of hair removing cream as harmful and unfit for use. The room full of mannequin legs is clearly intended to create an impression of ugliness and disgust amongst the viewers of the impugned advertisement thereby deterring them from using the plaintiff's product.
48. Mr.Chander Lall pointed out that one of the mannequins is shown holding a hair removing cream which is in pink and white tube which is deceptively similar to the packaging of the respondent plaintiff's VEET branded hair removing cream. Another is seen holding a blue variant of the VEET Product. Additionally, one of the mannequins is shown holding a spatula, the shape and configuration of which is identical to that of the plaintiff's spatula which is also subject matter of a registered design of the respondent plaintiff.
49. Mr.Chander Lall argued that depiction of mannequins holding the respondent plaintiff's hair removing cream is clearly intended to create an impression that the users of the respondent plaintiff's hair removal cream get dead skin and the skin of users of the respondent plaintiff's hair removing creams becomes so rough that no living person ought to use the same. The mannequins are shown holding the plaintiff's VEET products which are identified with the arrow sign above. The respondent plaintiff's spatula is also visible in the snap shot with red arrow.
50. Mr.Chander Lall pointed out that the advertisement depicts a hair removing cream lying on the floor and the protagonist is shown holding a magnifying glass and closing up on the hair removal cream. Even in the screen shot, the registered design of the respondent plaintiff's spatula is shown, identified by the arrow.
51. Mr.Chander Lall submitted that the close up shows a tube of hair removing cream with its ingredients printed in bold, being UREA, TG ACID and other STRONG CHEMICALS. This is clearly, a misrepresentation as there are no strong chemicals in the respondent plaintiffs hair removing cream which contains chemicals within permissible limits as per BIS standards and the product of the plaintiff has been approved by the Drugs Authorities under the Drugs & Cosmetics Act. Mr.Chander Lall submitted that the authorities under the Drugs and Cosmetics Act have certified that the ingredients used in the respondent plaintiffs product are safe.
52. Mr.Chander Lall further submitted that blue and white striations are used to identify the respondent plaintiff's VEET product. The use of the word TG Acid refers to Thioglycolic Acid gives the impression that the respondent plaintiff's product contains T.G.Acid and Other Strong Chemicals as part of its list of ingredients on its packaging which is clearly a false representation. Thereafter, the protagonist states So open your eyes... read before use.... Don't squeeze, don't spread, don't repeat the abuse. The clear message conveyed by the advertisement is that using the respondent plaintiff's VEET hair removing cream is not only harmful but also amounts to abusing the body.
53. Mr.Chander Lall argued that the depiction of application of the hair removing cream on mannequins creates the impression that the plaintiff's hair removing cream is not intended for human use and is extremely harmful and dangerous. The mannequin in this shot is seen holding the plaintiff's VEET product identified by the arrow symbol. The tube used for application of the cream is also indicative of the respondent plaintiff's product.
54. Mr.Chander Lall further argued that the advertisement zooms in from the cream to a cloud of chemicals which clearly portrays acidic reaction taking place on the skin after application of the respondent plaintiff's hair removing cream. This depiction of an acidic reaction by a cloud of chemicals is to deter the consumers from using the respondent plaintiff's hair removing cream.
55. Mr.Chander Lall submitted that the advertisement thereafter depicts a pool full of chemicals with smoke emanating from the pool. The protagonist walks very carefully on stones in the pool of chemicals saying Urea and Chemicals as strong as bathroom cleaners. Thereafter, there is a disclaimer in writing on the screen stating Based on analysis and technical tests which shows pH levels as high as 12 on account of some ingredients in hair removing creams.
56. Mr.Chander Lall submitted that the pH level in the plaintiff's hair removing cream is as per the permissible limits of BIS standards and the plaintiff's product is being manufactured under a valid license under the Drugs and Cosmetics Act.
57. Mr.Chander Lall argued that screen shot showing the protagonist entering a bathroom with a very contemptuous expression on her face saying urea and chemicals are as strong as bathroom cleaners, and then Oh Yes! Hair removing creams are filled with it, is definitely disparaging.
58. Mr.Chander Lall submitted that the protagonist is next shown pushing down hair removing creams from the counter, thereby denigrating the hair removing creams as unfit to be kept on a counter in the bathroom. Mr.Chander Lall further submitted that the green and blue tube appearing in the screen shot is also identical to the plaintiff's VEET packaging with a white swirl at the top of the packaging. At this juncture, the protagonist states, So do yourself a favor.. get some care for your curves. The protagonist is shown using a razor on already hairless skin trying to create an impression that using a razor on already hairless skin makes the skin extra smooth.
59. Mr.Chander Lall pointed out that the protagonist in the advertisement is then shown walking from an acidic floor to fresh green grass. While the protagonist is shown to avoid touching the alleged harmful chemicals by walking carefully on stone blocs, she walks comfortably on the grass to send out the message that shaving is the natural way of removing hair and not the use of depilatory creams. The protagonist announces coz its love not strong Chemicals you need. The same illegible disclaimer and/or warning appears on the screen again which states Based on analysis and technical tests which shows pH levels as high as 12 on account of some ingredients in hair removing creams. The advertisement then ends with a screen showing the appellants Venus branded razor and a message NO TO STRONG CHEMICALS. Yes to smooth skin.
60. Mr.Chander Lall emphasized that while the product of the respondent plaintiff has been is shown in the advertisement to be full of strong chemicals, harmful and unfit for human use and equated of chemicals, the appellants product is shown surrounded by grass and greenery giving the impression that the appellant's product is the safest way of hair removal. This is false to the knowledge of the respondent plaintiff and contrary to the claims made by the appellant on their own website which states that razors have the risk of causing nicks and cuts.
61. Mr.Chander Lall submitted that the print advertisement of the appellant also makes false and misleading assertions denigrating the respondent plaintiff's product. Mr.Chander Lall read out the details of the print advertisement as pleaded in the plaint. The relevant paragraphs in the plaint emphasized by Mr.Chander Lall in this regard are extracted herein below:
31. The print advertisement urges the consumers to say no to strong chemicals, which is clearly identifiable as the plaintiffs VEET hair removing cream in the video advertisement. Additionally, the depiction of a pink tube of hair removing cream is a clear identifier of the plaintiffs Veet branded hair removing cream. Additionally, the print advertisement also makes a misleading and denigrating statement that Most hair removal creams contain urea, TG Acid and other strong Chemicals; so do yourself a favour and get some gentle care for your curves. These claims are not only false and misleading but also denigrating by referring to the plaintiffs product as a harmful chemical which is a completely false statement.
32. It is relevant to mention here that a detailed analysis of the impugned advertisement is necessary to appreciate the true purpose and meaning of an advertisement. Such advertisements run on television channels which charges huge sums per second of the advertisement and in cases, an advertisement running for 30 seconds would cost few lakhs of rupees. Hence every frame is carefully selected, chosen and shot to portray a complete story to a viewer in a very short duration. In the present case, the unmistakable impression sought to be created is as follows:
(a) That the plaintiffs product is extremely harmful- this is portrayed by the use of the expression, Urea, TG Acid and other strong Chemicals as well as by using the expression Urea and Chemicals is the strongest bathroom cleaners Oh Yes! hair removal creams are filled with it.
(b) The depiction of use of hair removing cream on mannequins is clearly intended to show that hair removing creams are not fit for human consumption.
(c) The depiction of the protagonist walking very cautiously over stones in what appears to be a pond of chemicals is highly denigrating and designed to give an impression that hair removing creams are highly toxic and dangerous.
(d) That shaving, in fact, is a better hair removing technique than use of hair removing creams. In fact, the reverse is true.
(e) That using hair removing creams is as bad as using toilet cleaner to remove hair. It is pertinent to mention here that the plaintiff also manufactures toilet cleaners under the brand HARPIC which is the leading disinfectant toilet cleaner in India and comparison of the plaintiffs hair removing cream with the toilet cleaners is a clear attempt by the defendant to equate the toilet cleaner of the plaintiff with the hair removing product of the plaintiff. By way of this comparison, the defendant is portraying that the toilet cleaner of the plaintiff and hair removing cream have the same ingredients which is completely false. Such comparison is not only unfair but also contrary to honest trade and the commercial practices.
(f) That users of the plaintiff's hair removing cream are compromising on their health and skin; and
(g) That the plaintiff's product has harmful chemicals whereas the defendant's product is natural.
(h) That the use of the plaintiff's product causes pain and discomfort whereas the use of the defendant's product is painless.
62. Mr.Chander Lall argued that the advertisement in print as well as by way of video clip undoubtedly give the impression that the depilatories shown in the advertisement are those of the respondent plaintiff.
63. Mr.Chander Lall referred to a decision in Lakhanpal National Ltd., vs M.R.T.P.Commission & Another, reported in 38 (1989) DELHI LAW TIMES 310 (SC), where the Supreme Court held:
7. .. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man? Does it lead a reasonable person in the position of a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language. Similarly a statement, which may be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer. Does a reasonable man on reading the advertisement form a belief different from what the truth is? The position will have to be viewed with objectivity, in an impersonal manner. It is stated in Halsbury's Laws of England (4th Edn., paras 1044 and 1045) that a representation will be deemed to be false if it is false in substance and in fact; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable representee.
64. Mr.Chander Lall also relied on a Division Bench judgment of the Delhi High Court reported in Dabur India Ltd., vs. M/s. Colortek Meghalaya Pvt. Ltd., supra, and in particular to paragraph 16 of the said judgment, extracted below:
16. In Pepsi Co. it was also held that certain factors have to be kept in mind while deciding the question of disparagement. These factors are: (i) Intent of the commercial, (ii) Manner of the commercial, and (iii) Story line of the commercial and the message sought to be conveyed. While we generally agree with these factors, we would like to amplify or restate them in the following terms:
1.The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed.
2.The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product? .
65. Relying on the aforesaid judgments, Mr.Chander Lall submitted that the intent of the impugned advertisements was to disparage the product of the respondent. The manner and story line of the commercial, denigrates the product of the respondent plaintiff falsely. Mr.Chander Lall argued that while truthful disparagement is permissible, untruthful disparagement is not.
66. Mr.Chander Lall submitted that in the 30-second advertisement, 24 seconds are devoted to depilatories, which are not even produced by the appellant. Only 6-seconds in the advertisement relate to the product of the appellant. Mr.Chander Lall submitted that puffery if truthful, may be permissible but the advertisement of the appellant is full of falsehood.
67. Mr.Chander Lall also referred to an interim judgment of the Delhi High Court in a suit, being CS(OS)No.375 of 2013, filed by the respondent plaintiff against Hindustan Unilever Limited, where the defendant maliciously equated the respondent plaintiffs product to harsh antiseptic. The Delhi High Court granted interim injunction observing that the impugned advertisement denigrates the product of the respondent plaintiff.
68. Mr.Chander Lall referred to Glaxo Smithkline Consumer Health care Limited and others vs., Heinz India Private Limited and another reported in 2010 Indlaw DEL 3044, where the Delhi High Court observed and held:
The impugned advertisement was issued in the Television media on 11.12.2008 by Heinz. It shall be hereafter referred to as the "first Complan advertisement". The contents of the advertisement may now be briefly described. Kavita, (the "Horlicks mother") is out shopping when she is approached by another young mother, known to her (the "Complan mother"). The latter asks Kavita why she has started compromising on her child"s health; to which, Kavita gets confused and seeks an explanation. The Complan mother explains by telling that she (Kavita) was buying a product made of cheap ingredients and that she is compromising with her child"s growth. Kavita then responds by asking whether she was compromising. The Complan mother then holds a bespectacled and fat child, (i.e. Kavita"s child) and asks Kavita whether she knew that with Complan how fast her child could grow. Kavita dejectedly responds in the negative. At this stage, the Complan other mother picks up a Complan packet and states that it would help children grow twice as tall. The Complan mother elaborates this and highlights the product stating that it (Complan) has 23 vital nutrients and more protein, particularly quality milk protein and underlines that as the reason why Complan is better than any other health drink. Even as Kavita looks on the Complan mother emphasizes that intelligent mothers know that one cannot buy gold with the price of brass. At this, Kavita tells the Complan mother that she was made to understand wrongly and had been misled and from that day there would be no compromises. A visual shows her pushing away the Horlicks bottle, which she had earlier picked up and substitute it with a packet of Complan. The next shot highlights Complan"s quality and attributes.
Heinz"s second advertisement opens with the same cast, i.e. Kavita, the Horlicks mother and the Complan mother in a departmental store. The Complan mother"s son picks up a Complan pack; at this Kavita queries the former as to how her son is so tall and healthy. The Complan mother replies that she gives the boy a health drink with better quality protein. Kavita then queries her as to what is meant by better quality protein. The Complan mother then explains "Yes: Complan". Kavita seeks an elaboration. At this stage, there is a female "voice over" which highlights that Complan has 23 vital nutrients, 18% protein and that too with better quality 100% milk protein. The camera then focuses on the Complan mother who says that these ingredients are essential for a child"s growth. The Complan mother goes on to ask Kavita: "have you ever read the label of cheap Horlicks?"
Kavita replies in negative. The Complan mother then states that it (with reference to Horlicks) contains "cheap products and ingredients" which means less proteins and less nourishment and then comments that if one wants one"s child to grow tall and healthy there ought not to be any compromise. The last frame of this, second advertisement ends with a female voice over with the image of Complan flashing; the female voice urges "drink Complan and see the difference .
In this case, the word "cheap" has been used repeatedly, by Heinz in respect of Horlicks; the suggestion further is that it uses "cheap" ingredients, as opposed to Complan"s 100 % milk protein ingredients, which are not cheap. In one advertisement, the insuniation is that good quality ("gold") cannot be had for the price of brass. The next word used repeatedly is "compromise" on the growth needs of the child. While lauding or commending Complan"s qualities, as best suited to a child"s growth needs, is permissible, any contrast with a rival product, such as Horlicks, with a further suggestion that use of such (rival) product would compromise on the child"s growth, with images of a tall and healthy boy, said to be using Complan, as compared with a less healthy or child, clearly amounts to denigration of the rival product - in this case, Horlicks. Heinz"s attempt to justify its position by saying that Horlicks had referred to its product as cheaper than the rival Complan, is technically correct, but unpersuasive, because the contexts of the rival advertisements are entirely different. Nor is the Court satisfied that the mere detail that it uses 23 nutrients, as opposed to 19 used by Horlicks, brings it within the permissible or fair threshold.
This Court is conscious of the powerful and lasting impact that audio visual images have on viewers. Unlike the printed word, which is processed analyzed, and assimilated uniquely by each individual, an advertisement in the electronic media, particularly, has a different impact. First, it has a wider spread; it is perceived aurally through different senses, such as sound, visual, and printed. The suggestive power of this medium is greater. Second, such advertisements use several different tools, like music, dialogue, colors, and other aids, to bring home the message. advertisements through this medium can, and do operate at conscious and subconscious levels; their power of suggestion extends not just to the discerning, or educated viewer, but to an entire range of viewership, with diverse income earning capacities, educational attainments, tastes, and so on. They influence even children. The impact of a catchy phrase, a well acted skit or story line, or even distinctive sounds or distinctive collocation of colors, can well define the brand or product"s image, by imprinting it in the public memory forever. In these circumstances, it becomes even more imperative for an advertiser, who wishes to indulge in comparative advertisement, to tread the boundary carefully. In the present case, the Court is satisfied, prima facie that the references to Horlicks, on an overall consideration, in the impugned two advertisements issued by Heinz, amount to disparagement.
Heinz is restrained from publishing or telecasting the two impugned advertisements, or any other advertisements containing similar content, which tends to cast a slur on Horlicks, by implying that it is cheap or inferior, or that it compromises on essential qualities. Similarly, the ad-interim injunction application in the second Delhi suit, is allowed, partly; Heinz is restrained from publishing any reference to Horlicks being cheap, or inferior, or comprising of inferior ingredients, or compromising on children"s growth needs. Heinz"s ad-interim temporary injunction application, for the reasons discussed above, is dismissed.
69. Mr.Chander Lall argued that the percentage of disparagement is immaterial. He drew the attention of this Court to the relevant paragraphs of the impugned order and submitted that when the view taken by the learned Single Judge is plausible, the Appellate Court cannot take a different view.
70. In support of the contentions of the respondent plaintiff, Mr.Chander Lall also referred to the following judgments:
i.Reckitt & Colman of India Ltd. v. Jyothi Laboratories Ltd., reported in (1999) 2 CAL LT 230 (HC);
ii.Hindustan Unilever Ltd. v. Proctor and Gamble Home Products Ltd. (2010) 43 PTC 460;
iii.Reckitt Reckitt & Colman of India vs., M.P.Ramachandran & Anr [{1999 PTC (19) 741}] iv.Pepsi Co., Inc vs Hindustan Coca Cola Ltd., [{2003 (27) PTC 305 (Del) (DB)}].
v.Karamchand Appliances P.Ltd., vs Sh.Adhikari Brothers [2005 (31) PTC 1 (Del)].
vi.Annamalayar Agencies vs VVS and Sons Pvt., Ltd., [2008(38) PTC37(Mad)].
vii.Dabur India Limited vs Emami Limited [112(2004) DLT 73] viii.Dabur India Limited vs Colgate Palmolive India Ltd., [AIR 2005 Delhi 102] ix.Paras Pharaceuticals Ltd vs., Ranbaxy Laboratories Ltd., [AIR 2008 Guj 94] x.Frankfinn Aviation Services Pvt Ltd vs Akash Gupta [2010 (42) PTC 294 (Del)] xi.Godrej Consumer Products Ltd vs Initiative media Advertising [2012 (114) BOMLR 2652] xii.Unibic Biscuits India Pvt., Ltd., vs Britannia Industries Limited [MIPR 2008(3) 347].
71. In Reckitt & Colman of India Ltd. V. Jyothi Laboratores Ltd., supra, the appellant manufactured Ultra Marine Indigo (Neel) both in liquid and powder form under the trade name Robin Blue, while the first respondent sold a whitening agent, which was an "Insta violate concentrate" under the trade name 'Ujala'. The offending advertisement which was broadcast on television showed that Neel left blue patches on a childs uniform, which subjected the child to ridicule in his school, and thus upset his mother. The advertisement showed that while the boy's mother was brooding over the effect of Neel on her son's shirt, a lady in a dazzling white saree entered with a bottle of Ujala to the accompaniment of a Jingle which praised Ujala as a whitening agent. The next few shots showed a flag race. The child won and then he quipped that that in whiteness Ujala was first, while his mother lamented that Neel had failed. The appellant's contention, that the commercial was directed to promote the product of the respondent No.1 and deprecate the use of Neel by deliberate misrepresentation with regard to its quality and efficacy, was upheld by the Division Bench of the Calcutta High Court and interim injunction was allowed in favour of Robin Blue. The High Court observed that in cases of libel, the endeavour of the Court should be to protect the plaintiff without unduly restricting the defendants right of free speech.
72. In Hindustan Unilever Ltd. V. Proctor and Gamble Home Products Ltd., supra, the appellant, Hindustan Unilever Ltd. manufactured and sold varieties of detergents, one of which was RIN, whereas Proctor and Gamble sold detergents under the mark TIDE. An advertisement which conveyed insinuations and innuendos that the product TIDE was inferior and of substandard quality was held to be disparaging. The Division Bench refused to interfere with the injunction granted by the Single Bench.
73. In Reckitt & Colman of India v. M.P.Ramachandran, supra, a Single Bench of Calcutta High Court held:
24. It is true that one can boast about technological superiority of his product and while doing so can also compare the advantages of his product with those which are available in the market. He can also boast about the relative advantages of his own product over the other products available in the market. He can also say that the technology of the products available in the market has become old or obsolete. He can further add that the new technology available to him is far more superior to the known technology, but he cannot say that the known technology is bad and harmful or that the product made with the known technology is bad and harmful. What he can claim is only that his product and his technology is superior. While comparing the technology and the products manufactured on the basis thereof, he can say that by reason of the new superior technology available to him, his product is much superior to others. He cannot, however, while so comparing say that the available technology and the products made in accordance therewith are bad and harmful.
25. In the instant case the object of the advertisement was to convey to the customers of the blue including those of the plaintiff that if you use blue to whiten your washed clothes you will get washed clothes with blue patches.
26. This could not be done.
27. In those circumstances the orders passed by me on this application are confirmed and the same will continue until disposal of the suit.
74. In Pepsi Co Inc. v. Hindustan Coca Cola Ltd., supra, the Delhi High Court held:
18. Admittedly puffing one's product by comparing others' goods and saying his goods are better is not an actionable claim but when puffing or poking fun amount to denigrate the goods of the competitor, it is actionable. Calcutta High Court in the case of Reckitt & Colman of India Ltd. v. M.P. Ramchandran, 1999 PTC (19) 741 while dealing with the question of disparagement, laid down the principles which the court should look into while granting the injunction. One of the principles is that the Court has to look at whether the advertisement or the commercial, as the case may be, merely puff the product of the advertiser or in the garb of doing so directly or indirectly contends that the product of the other trader is inferior. In the present case in the garb of puffing up its product i.e. Thums Up prima facie respondents have tried to depict the product of the appellant as inferior.
19. On the other hand, contentions of the counsel for the respondents that merely calling PEPSI COLA a sweet drink or bacchon wala hein by itself does not in any way indicate that respondent hinted appellant's product as inferior. The products which are liked by children do not become inferior or harmful nor by saying so respondents denigrated or disparaged the product of the appellant.
20. There is no doubt that comparison is permissible so long it does not undervalue the product of the rival. In the commercials shown by respondent and as quoted above children are made to understand that young people don't drink sweet Cola. It is not an indication of superiority in technology of respondent's drink but showing inferior quality of the appellant's product as if PEPSI COLA is not liked by the young people or that it is meant only for children, therefore, the choice of the Boy for Pepsi is said to be a wrong choice. By projecting so the respondent through the lead actor conveys in a sophisticated way that the product of the appellant is rubbish.
75. In Karamchand Appliances P. Ltd. V. Sh.Adhikari Brothers, supra, the Delhi High Court held:
19. Two propositions clearly emerge from the above pronouncements, namely, (1) that a manufacturer or a tradesman is entitled to boast that his goods are the best in the world, even if such a claim is factually incorrect, and (2) that while a claim that the goods of a manufacturer or the tradesman are the best may not provide a cause of action to any other trader or manufacturer of similar goods, the moment the rival manufacturer or trader disparages or defames the goods of another manufacturer or trader, the aggrieved trader would be entitled to seek reliefs including redress by way of a prohibitory injunction.
76. In Annamalayar Agencies v. VVS and Sons Pvt. Ltd., supra, the Court found that an advertisement depicting that the general public did not pick up blue bottles, but grabbed green bottles of the defendant would send a wrong message to buyers of coconut oil that the plaintiffs product in blue bottles was inferior to the product of the defendant in green bottles.
77. In Dabur India Limited v. Emami Limited, supra, the Court deprecated the attempt of the defendant to establish that Chyawanprash was inferior to the defendants Amitprash by using Forget Chyawanprash in summers, eat Amitprash instead, as derogatory.
78. In Dabur India Limited v. Colgate Palmolive India Ltd., supra, the advertisement showed a cinestar Sunil Shetty stopping the purchasers of Lal Dant Manjan Powder of Dabur by showing them all the ill-effects of such Lal Dant Manjan by rubbing the same on spectacles. Sunil Shetty remarks that the marks are akin to sandpapering and he endorses the defendant Colgates tooth powder as 16 times less abrasive and non damaging to the spectacles. The Delhi High Court held that the advertisement was designed to denigrate the tooth powder of the defendant, even though the advertisement did not specifically refer to the tooth powder of the defendant.
79. In Paras Pharmaceuticals Ltd. V. Ranbaxy Laboratores Ltd., supra, the comparative advertisement of depicting MOOV as ineffective and portraying VOLINI as better and true pain reliever was found to be disparaging, denigrating and objectionable.
80. In Frankfinn Aviation Services Pvt. Ltd. V. Akash Gupta, supra, the use of the words uselessfor training provided in stationed aircraft while showing the benefit of the defendants in-flight and airport exposure was held to be disparaging.
81. In Godrej Consumer Products Ltd. V. Initiative Media Advertising, supra, depiction of the product of the plaintiff as having no effect on mosquitoes, requiring a person to indulge in acrobatics to avoid mosquito bites, was found disparaging.
82. In Unibic Biscuits India Pvt. Ltd. V. Britannia Industries Limited, supra, the Court held that comparative advertisement was permissible so long as such comparison did not disparage or denigrate a trade mark or the products of a competitor.
83. As argued by Mr.Chander Lall, it is well settled that the Appellate Court would not normally be justified in interfering with the exercise of discretion by a Single Judge, solely on the ground that, if it had considered the matter at the first instance, it would have come to a different conclusion. If exercise of discretion by the Court of first instance is reasonable and judicious, the fact that the Appellate Court might have taken a different view does not justify interference with exercise of discretion by the Court of first instance. However, as stated by Gajendragadkar,J. in Printers (Mysore) Private Ltd. v. Pathar Joseph, reported in AIR 1960 SC 1156, the difficulty arises in the application of these principles to an individual case.
84. By the order under appeal, the learned Single Bench has not only restrained the appellant, its directors, proprietors, partners, officers, employees, agents, distributors, franchisees, representatives or assigns from issuing or telecasting the impugned advertisements or issuing any other advertisement which disparages the goodwill and reputation of the respondent plaintiff in any manner, in any media, including the electronic media, social media or print media, pending disposal of the suit, but also restrained them from making comparison or importing direct or indirect reference to hair removal creams conveying the message that hair removal creams are harmful.
85. In an ever growing and highly competitive market for consumer goods, advertisements play an important part in attracting customers. advertisements are, inter alia, issued by way of installation of digital boards in strategic locations, erection of hoardings and banners in crowded places, distribution of pamphlets in case of products and services of smaller entrepreneurs, pictorial depictions, including cartoons in the print media, short films, skits, screen shots, etc. exhibited, inter alia, in the electronic audio visual and social media and in cinemas and multiplexes.
86. Advertising itself has become a flourishing business with various advertising agencies vying with each other for a place in the market. Advertisers compete with each other to introduce novelty in advertisements by various ways and means, including the use of catchy phrases, acrobatics, histrionics, body movement, depiction of film stars and sports stars as models.
87. As held by the Supreme Court in Tata Press Ltd. V. Mahanagar Telephone Nigam Limited and others, supra, advertising is a part of commercial speech and the right to advertise as part of commercial speech is a fundamental right under Article 19(1)(a) of the Constitution of India.
88. The right to advertise, in our view, is also an integral part of the right to carry on commerce, trade or business, as it is through advertisements that an entrepreneur can promote and sell goods and services. Moreover, advertising is in itself a business, and an important source of finance for the print and electronic media houses, film exhibitors, publishers of journals and magazines, etc.
89. At this stage, we do not deem it necessary to go into the question of whether the fundamental rights conferred on a citizen of India under Article 19 of the Constitution of India are at all available to the appellant, which is a multi-national corporate body, since the respondent plaintiff has not argued that point.
90. However, the fact remains that the right under Article 19(1)(a) and 19(1)(g) of the Constitution of India is subject to reasonable restrictions and in any case, all rights, including fundamental right, are limited to the extent they do not infringe the rights of others. The right to freedom of speech or to carry on business does not extend to protection against defamation, slander, libel, denigration or disparagement.
91. In recent years, there has been a phenomenal increase in comparative advertising, where an entrepreneur not only propagates his own goods or services, but also compares them with goods and services of others and tries to project the goods or services advertised as of the same or superior quality to those of others.
92. We are in full agreement with the view of the learned Single Bench in Reckitt & Colman of India v. M.P.Ramachandran, supra, that:
(i) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.
(ii) He can also say that his goods are better than his competitors, even though such statement is untrue.
(iii) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors he can even compare the advantages of his goods over the goods of others.
(iv) He however, cannot, while saying that his goods are better than his competitors, say that his competitors goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible.
(v) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.
93. In Karamchand Appliances Pvt. Ltd. v. Adhikari Brothers and others, supra, relied on the aforesaid Single Bench judgment of the Calcutta High Court and rightly held that a manufacturer or a tradesman is entitled to boast that his goods are best in the world, even if such a claim is factually incorrect. While a claim that the goods of a manufacturer or tradesman are the best may not give rise to a cause of action to any other trader or manufacturer of similar goods, the moment the rival manufacturer or trader disparages or defames the goods of another manufacturer or trader, the aggrieved trader would be entitled to seek reliefs, including redress by way of a prohibitory injunction. We fully endorse the view of Delhi High Court.
94. Even though it is now well settled that comparative advertising is permissible and it is open to an advertiser to compare the goods or services advertised with those of others and portray the goods or services advertised as better than those of others, this can only be done without denigrating or disparaging the goods or services of others.
95. The meaning of the expression disparage as given in the commonly used dictionaries is, inter alia, to speak slightingly, to undervalue, to bring discredit or dishonour, to deprecate, to degrade, to derogate, to denigrate, to defame, to reproach, to disgrace, or to unjustly class. Disparagement is, inter alia, the act of speaking slightingly, of undervaluing, of bringing discredit or dishonour, of deprecating or degrading or disgracing or unjust classing. It also means derogation or denigration or defamation or reproachment.
96. Whether an advertisement is disparaging or not would depend on several factors, for which each advertisement would have to be judged on its own merits, on consideration of the overall impact of the picture that is portrayed, the language used, the histrionics, the gesticulations, the movements, acrobatics, catch phrases, hilarity or other catchy screen shots. While humour, hilarity or even ridiculing to highlight the advantages of one's own product may be permissible, ridiculing services and products of another would amount to disparagement.
97. To decide whether an advertisement is disparaging, the Court has to consider (i) the intent of the commercial advertisement; (ii) the message sought to be conveyed; and (iii) the mode and manner of conveying the message. Condemning the goods and services of a competitor or ridiculing the same or showing the same as substandard would amount to disparagement.
98. Of course, as stated above, mere puffing up of one's products or services in comparison to those of others would not constitute disparagement. It may be permissible for an advertiser to compare the technology or the formula of the products of others in an attempt to impress upon viewers the superiority of the goods and articles advertised over those of others. In the process, an advertiser may even brand the technology and/or formula applied by others as obsolete compared to the more modern technology or formula of the advertiser, but without denigrating or disparaging the products of others.
99. A judgment is a precedent for the issue of law which is raised and decided and not for what might logically be deduced from the decision arrived at in the facts and circumstances of a particular case, and that too for the purpose of granting interim injunction. Words and sentences in a judgment cannot also be read like the provisions of a statute enacted by Parliament or even statutory Rules and in no case can the same be read out of context. Moreover, while the judgments of the Supreme Court are binding on this Court and while judicial discipline demands that this Court should follow judgments of Benches of this Court of co-ordinate strength, judgments rendered by other High Courts can only have persuasive value.
100. Advertisements in the electronic audio visualmedia leave an indelible impression in the minds of viewers. This medium of advertisement has a far greater impact on its viewers than a print advertisement, as noted by the Delhi High Court in Glaxo Smithkline Consumer Health care Limited and others vs., Heinz India Private Limited and another, supra. A catchy phrase, a well enacted skit or story line, or even distinctive sounds or distinctive collocation of colors make a lasting impact and more so, when viewed repeatedly.
101. However, different consumers viewing the same comparative advertisement may come to different conclusions. To constitute disparagement of a product, the message conveyed should be defamatory or disparaging. As argued by Mr.Raman, truth may be a legitimate defence to a defamatory, derogatory or disparaging message. However, if an advertisement apparently conveys a message which appears to be disparaging, the justification of truth would necessarily have to be decided at the trial.
102. In granting interim relief of injunction, the Court is required to examine whether the plaintiff has made out a strong prima facie case, whether pecuniary compensation would afford the plaintiff applicant for injunction adequate relief and whether the balance of convenience is in favour of passing of an interim order in favour of the plaintiff applicant.
103. In judging the balance of convenience, the Court would have to weigh the competing interest of the applicant for injunction and the party opposing injunction and address to itself the question of who would suffer greater prejudice the plaintiff applicant for injunction by refusal of injunction, if the proceedings ultimately succeeded, or the respondent by grant of injunction, if the suit ultimately failed.
104. If in a suit for disparagement in relation to an advertisement a strong prima facie case of disparagement is made out, injunction would necessarily have to be granted, for pecuniary compensation could never compensate defamation and/or disparagement. By grant of injunction, the opposite party would only be restrained from disparaging the applicant for injunction till a final decision was taken by the Court. The prejudice to the applicant for injunction by continuous exhibition of disparaging advertisements would be irreparable, and far greater than the prejudice to the opposite party, if the applicant ultimately succeeded.
105. In these appeals, we are concerned with the print advertisement and the video clip depicted above, which is advertised on the audio visual media.
106. Each advertisement has to be judged on its own merits, on consideration of the overall impact of the picture that is portrayed, the language used, the histrionics, the gesticulations, the movements, etc. In issuing advertisements, an advertiser is legitimately entitled to highlight the advantages of its own product over similar products of others and a mere comparison with products of others and highlighting the advantages of ones own products would not amount to disparagement.
107. In a disparagement suit, the Court would have to examine whether the object of the advertisement is to highlight the benefits of the products of the advertiser in comparison to those of others or to denigrate the products of others, which would amount to defamation.
108. In judging the impact of the advertisement issued, inter alia, in the audio visual media, it is important for the court to keep in mind the fact that watching televisions and surfing internet are part of the daily routine in every household and advertisements have a great impact on viewers, who are potential buyers of consumer goods. Just as the novelty of an advertisement attracts the attention of potential buyers, the novel way of derogating goods and services of others could also leave a lasting negative impression and deter potential customers.
109. In judging an advertisement, one has to keep in mind the potential users of the goods and services advertised. Depilatory creams and/or hair removers, as also razors of the appellant, are likely to be purchased by a class of more discerning consumers conscious of their looks and hygiene, who are not likely to be carried away by gimmicks, unlike purchasers of ordinary daily household consumer items, food items and the like, who could include less informed, less educated, economically weaker consumers, more likely to be influenced by audio visual advertisements on the electronic media.
110. The potential users of depilatory creams are far more informed than customers of ordinary household goods. Users of depilatory creams are not likely to be misled by advertisements showing the model and/or mannequin using a razor on bare skin with no hair to think that using of razors would improve the quality of the skin. Nor would an advertisement showing the protagonist flinging tubes of depilatory creams from the counter in the bathroom contemptuously deter a potential customer of depilatory creams and influence her to switch to razors.
111. The print advertisement impugned which only highlights the use of a razor and decries use of strong chemicals is not a disparaging advertisement. The intention of the advertisement is clearly to promote the razors of the appellant.
112. The video clip advertisement starts with the haunting voice message Lets silence the comments and the compromises. Lets call out the hair removal creams that come in all sizes. This part of the advertisement really highlights the benefits of razors over depilatory hair removal creams and is not in itself derogatory. The mannequins have been used for visual effect. Similarly, the voice message So open your eyes, read before use is also not disparaging.
113. However, Tall, thin short. Even the 10 and 20 gram sorts followed by the depiction of the tube of hair removal cream showing in bold print, the ingredients Urea, T.G. Acid and other strong chemicals and the voice message thereafter Urea and chemicals as strong as bathroom cleaners with the disclaimer Based on analysis and technical tests which shows Ph levels as high as 12 on account of some ingredients in hair removal creams followed by the voice message Oh yes, hair removal creams are filled with it gives the impression that all hair removal creams whether tall, thin, short even the 10 and 20 grams sorts have strong chemicals which are as strong as bathroom cleaners, and makes the advertisement disparaging.
114. The overall impact of the advertisement is disparaging by reason of the depictions mentioned above. Even the more discerning purchasers of depilatory creams are likely to be swayed by the overall impact of the advertisement and in particular the assertion that all depilatory creams contain Urea, T.G. Acid and chemicals as strong as bathroom cleaners read with the disclaimer based on analysis and technical tests which shows pH levels as high as 12. It is difficult to accept Mr.Raman's argument that the advertisement only educates the public on various features of hair removal creams.
115. It is true, as argued by Mr.Raman, that there is no specific reference to VEET in the advertisement. However, admittedly, the respondent plaintiff dominates 80% of the market in depilatory creams. As observed above, the overall impression created by the advertisement by way of video clip is that all hair removal creams, which would include the hair removal creams of the respondent plaintiff, are harmful, having strong chemicals which are as strong as bathroom cleaners. Prima facie, there is disparagement of the depilatory cream of the respondent plaintiff.
116. Defence of truth may be a good defence in a disparagement suit. However, whether the advertisement is truthful or not would necessarily have to be adjudicated upon trial. Disputes as to whether the acidity or the alkalinity of depilatory creams of the respondent plaintiff is beyond the safety limits cannot be decided at the interlocutory stage.
117. For the foregoing reasons, the appeals are allowed partly. The order of the learned Single Judge is set aside to the extent it applies to the print advertisement of the appellant depicted above. The order of injunction is affirmed in respect of the advertisement by way of video clip with the clarification that the injunction will not prevent the appellant from displaying non disparaging advertisements in the electronic media and/or any other cinematographic form after editing and removing the offending portions of the advertisement. It is made clear that the observations made above are prima facie observations in the light of the prayer of the respondent plaintiff for interlocutory injunction and will not bind the trial Court in any manner whatsoever and the trial Court might in its discretion take a contrary view as might be deemed fit, uninhibited by this order.
118. Since the appellant has already filed its written statement in the suit, the learned Single Bench is requested to dispose of the suit as early as possible, preferably within six months from the date of communication of this order. The connected miscellaneous petitions are closed. There shall be no order as to costs.
(I.B. C.J.,) (A.Q. J.,)
02.2018
19.04.2018
Speaking Order
Internet: Yes
Index : Yes
Note to Registry:
Issue order copy on 20.4.2018
sts/pam/bbr/sasi
To:
The Sub Assistant Registrar
Original Side
High Court, Madras.
THE HON'BLE CHIEF JUSTICE
and
ABDUL QUDDHOSE, J.
sasi
O.S.A.Nos.35 to 39 of 2018
and C.M.P.Nos.2116 to 2124 of 2018
19.04.2018