Judgment:
Badar Durrez Ahmed, J.
1. The plaintiff seeks an injunction restraining the defendant from telecasting an advertisement, a story board of which has been filed at page 1 of the list of documents filed Along with the plaint, on the ground that it disparages the goodwill and reputation of the plaintiff and its product sold under the trademark 'HARPIC'.
2. The impugned advertisement is in respect of the defendant's toilet cleaner which is sold under the mark 'DOMEX'. According to the plaintiff, the impugned advertisement, while promoting the defendant's said product 'DOMEX', disparages and rubbishes blue liquid cleaners and, thereforee, is also directed against the plaintiff's toilet bowl cleaner which is sold under the mark 'HARPIC' and is blue in colour.
3. According to the plaintiff, its product 'HARPIC POWER' and now the newly introduced 'HARPIC POWER OPTI-THICK' are blue acid-based cleaners. On the other hand, the defendant's DOMEX cleaner is a bleach-based cleaner and is translucent / white. It is contended on behalf of the plaintiff that acid-based cleaners can have a colour inasmuch as colour dyes are stable with acids. However, bleach-based cleaners, not being stable with colour dyes, cannot have a colour such as blue. It is further alleged that the plaintiff has three other acid-based products under the HARPIC mark which have the colours - red, yellow and green. The plaintiff also has a bleach-based product, with which we are not concerned in the present case. The defendant has no acid-based cleaners. Consequently, the defendant does not have any toilet bowl cleaner in any colour other than translucent / white. It was further contended on behalf of the plaintiff that the HARPIC toilet bowl cleaner constitutes virtually 80% of the market of toilet bowl cleaners and out of this, their blue toilet cleaner has a 72% market share, while the cleaners in the other three colours - red, yellow and green - constitute only 8%. It is submitted that apparently consumers have a preference for the colour blue. It was also contended that the majority of acid-based cleaners are blue in colour and that acid-based cleaners are generally recognised as blue. It was further contended on behalf of the plaintiff that acid-based cleaners constitute 92% of the market and bleach-based cleaners comprise of only 8% of the market.
4. The learned Counsel for the plaintiff submitted that DOMEX is a new product compared to the plaintiff's product HARPIC and the defendant is trying to increase its market share. He submitted that the colour blue is an identifier and it distinguishes between acid-based cleaners and bleach-based cleaners. Since the plaintiff has the major market share of acid-based cleaners, any attack on blue cleaners would constitute an attack on the plaintiff. It was, thereforee, submitted that the impugned advertisement, inasmuch as it disparages and denigrates blue liquid cleaners, as a class, denigrates the plaintiff's product.
5. It was also contended by the learned Counsel for the plaintiff that a toilet bowl cleaner must have two attributes - (1) germ killing; and (2) stain removing. He submitted that in this context, viscosity of the cleaner is an important consideration. If the cleaner has a low viscosity and is, thereforee, watery and too thin, it drains away rapidly and does not have sustained germ killing and stain removing ability. On the other hand, if the toilet bowl cleaner has a high viscosity and is thick, it would have a higher germ killing and stain removing capability. At the other end, however, if the toilet bowl cleaner is too thick, it won't spread and, thereforee, would not cover the entire toilet bowl. Consequently, while thicker toilet bowl cleaners having a higher viscosity are better and preferable to thinner and watery toilet bowl cleaners, the viscosity is critical inasmuch as it should not be too viscous.
6. The learned Counsel for the plaintiff submitted that the impugned advertisement is directed against thin and blue toilet bowl cleaners which have been rubbished as having no germ killing or stain removing ability. This disparagement, according to the learned Counsel for the plaintiff, has reference to the class of blue toilet bowl cleaners of which the plaintiff's product HARPIC is a member. It was also contended that the law on the subject is clear that while a trader may be permitted to indulge in puffery to a certain extent insofar as his own product is concerned and he may even claim his product to be better or best, he cannot indulge in denigration and slander of another trader's product. Thus, while a comparative advertisement would not be actionable per se, the law prohibits the person to denigrate another's products in order to attain a business advantage. Several decisions were referred to by the learned Counsel for the plaintiff which include:
1) Reckitt & Colman of India Ltd v. M.P. Ramchandran and Anr. 1999 19 PTC 741;
2) Dabur India Limited v. Emami Limited : 112(2004)DLT73 ; and
3) Dabur India Limited v. Colgate Palmolive India Limited : AIR2005Delhi102 .
7. On the other hand, the learned Counsel appearing on behalf of the defendant submitted that the theme of the impugned advertisement is to show the comparative advantage of a thick toilet bowl cleaner over thin toilet bowl cleaners and that the use of the colour blue is only incidental. He submitted that the impugned advertisement does not, directly or indirectly, refer to the plaintiff's product. He submitted that, admittedly, the plaintiff's product is a thick cleaner and, thereforee, cannot be confused with the thin cleaners referred to in the impugned advertisement. It was further contended that the plaintiff's product marketed under the name of HARPIC POWER forms the basis of the suit, but that has been discontinued by the plaintiff itself and the current product of the plaintiff is known as HARPIC POWER OPTI THICK. It was also contended on behalf of the defendant that thickness / viscosity is an attribute of toilet cleaners and if the impugned advertisement highlights this attribute and there is nothing untrue which is being projected by the impugned advertisement, how could the defendant be faulted. The learned Counsel for the defendant referred to Reckitt Benckiser (India) Ltd v. Cavin Kare Pvt. Ltd. 2007 (35) PTC 317 (Del.) to submit that a comparison of the product would not amount to disparagement. Similarly, he also referred to Godrej Sara Lee Ltd v. Reckitt Benckiser (I) Ltd. : 128(2006)DLT81 and Dabur India Ltd v. Wipro Limited, Bangalore : 129(2006)DLT265 . He also referred to Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd. : AIR1999SC3105 to indicate that the plaintiff has not been able to demonstrate that any consumer was misled by the impugned advertisement into believing that the plaintiff's product had been slandered. He also referred to Jarman & Platt Ltd v. I. Barget Ltd and Ors. 1977 FSP LR 260 to indicate that since no consumer surveys were conducted, there is nothing to even establish a prima facie case that there has, in fact, been a disparagement of the plaintiff's product. The learned Counsel for the defendant also submitted that the plaintiff is also not entitled to injunction on the ground of delay. It was contended that though in the plaint the grievance is made with regard to telecast of the impugned advertisement in Hindi in January, 2008 on national TV channels, an identical advertisement in regional languages of Southern India had been telecast in July, 2007 and continuously since then. The defendant had spent Rs 8 crores on this advertisement campaign since July, 2007 and the plaintiff did not take any objection to the same for over six months. He also submitted that it is not as if the telecast of the advertisement in regional languages meant that it was only beamed to a geographical region where the particular language was spoken. He submitted that channels in regional languages are also nationally telecast. The learned Counsel appearing for the defendant referred to various decisions on the point of delay and acquiescence including:
1) Godrej Sara Lee Ltd v. Reckitt Benckiser (I) Ltd. : 128(2006)DLT81 ;
2) B.L. and Co. and Ors. v. Pfizer Products Incl. 2001 PTC 797 (Del).
8. Lastly, the learned Counsel for the defendant submitted that injunction being an equitable remedy, it is important that the person seeking such a remedy comes to court with clean hands and does not suppress any material facts. He submitted that the plaintiff has suppressed the material fact that its product HARPIC POWER was discontinued in May, 2007. The suit is based on this product. It was submitted that in May, 2007, the plaintiff adopted HARPIC POWER OPTI THICK which is a thicker product, i.e., a toilet cleaner having a higher viscosity. He submitted that all the documents filed Along with the plaint relate to HARPIC POWER. Even the photographs show the product HARPIC POWER and there is no mention of the plaintiff's existing product HARPIC POWER OPTI THICK. It was contended that HARPIC POWER which was thinner than HARPIC POWER OPTI THICK was employed by the plaintiff as the basis of the suit because had the plaintiff mentioned its product HARPIC POWER OPTI THICK, it would have had no case at all inasmuch as the impugned advertisement disparages, if at all, thin toilet cleaners. It was, thereforee, submitted that for all these reasons, no injunction ought to be granted to the plaintiff.
9. The question that requires to be examined is - whether, in fact, there is any disparagement or slander of the plaintiff's product either specifically or as a member of a class? It has been contended that the test for such a disparagement has to be based on some consumer survey or opinions of consumers. I do not agree with this proposition. The reason being that it would not be difficult for both sides to produce consumer surveys in their favor as also to produce consumers to say what they want them to say. The result would be that there would be surveys and opinions on both sides and it would ultimately be left to the court to take a call on the issue. The exercise can, thereforee, be cut short and the court ought to do what, in any event, it would eventually have to do and, that is, to employ the test of an 'average person with imperfect recollection' and construe the impugned advertisement. The issue of slander of goods and disparaging advertisement is somewhat different from the case of infringement of trademarks and passing off where the test of an 'average person with imperfect recollection' is employed. In the present case, case of disparagement, I am of the view that since the allegation is that the advertisement is directed against or targeted upon a particular group of customers, the advertisement must be viewed from the standpoint of such customers. To make it clear, in the present case, the plaintiff alleges that the impugned advertisement is directed towards its customers - those who use HARPIC toilet cleaners. thereforee, the 'average person' must be one who belongs to this category. If, the court, stepping into the shoes of such an 'average person with imperfect recollection' comes to the view that the impugned advertisement disparages the product that this 'average person' has been hitherto using, then a case for disparagement would have been made out.
10. The impugned advertisement needs to be examined in the light of these observations. The story board of the impugned advertisement is as under:
1.
Film opens on a close-up of a toilet seat and bowl withthe Voice Over (VO): Yeh toilet dikhta hai saaf (This toilet looks clean);
2.
Next, the same toilet is shown as being scanned in apurple hue. Germs are shown spread all over the toilet bowl and seat. VO:Per kise pata ki yahan kitanuon ki.(But, who knows that there is an .)
3.
The scene cuts to a smaller germ talking to theCommander Germ with an army of germs in the background, apparently in thetoilet bowl. VO: purisena hai. To chalo phelayein cholerajaundice aur, aur....
(... entire army of germs here. Come,let us spread cholera, jaundice and, and....)
4.
The scene cuts to the smaller germ talking. VO:aur diarrhoea, Jahanpanah (.and diarrhoea, Protector of the World)
5.
Cut back to the Commander Germ who is holding a roundlaboratory flask containing a watery light blue liquid. VO: Auryeh patle toilet cleaner toh hain itne . (And these thin toiletcleaners are so .)
6.
Cut back to the smaller germ talking to the Commander. VO: ...kamzor, Jahanpanah (...weak, Protector of the World).
7.
Cut back to the Commander Germ who is issuing orders to the Army of Germs in the background.VO: Chalo bimaari phelayein (Come, let us spread diseases).
8.
The next scene shows the Domex cleaner being applied tothe toilet bowl.
9.
Next, the smaller germ is seen trying to run away fromthe a white/semi-white thick fluid (the Domex cleaner) which is flowingtowards him and the Commander germ who is in the foreground. VO: Yehto gaadha Domex hai (This is thick Domex)
10.
First, the smaller germ is annihilated.
11.
And, then the Commander.
12.
Cut to the familiar purple scan of the toilet seat andbowl which shows them to be free from germs. VO: Gaadha, shaktishali (Thick,powerful)
13.
Next, the same toilet seat and bowl are shown clean. VO:Naya Domex (New Domex)]
14.
Cut to the image of the blue Domex container on thetoilet seat cover. VO: Kitanuonka khatma (End of germs)]
15.
The clip ends with the 'Hindustan Unilever Limited' logoand name.
11. The advertisement as any other TV commercial, normally, has a video as well as an audio component. I have examined the advertisement in three ways. By observing it: (1) visually (video without audio); (2) audio without video; and (3) audio visually. When one observes the advertisement only visually, then one cannot discern whether the germs are talking about thick or thin liquid cleaners though a watery blue liquid cleaner can be seen as being rubbished. When one hears the audio of the impugned advertisement without the video component, one cannot discern as to whether there is any reference to a blue coloured toilet bowl cleaner, or for that matter, a toilet bowl cleaner of any colour. The audio component only tells us about thin toilet cleaners as against thick and powerful Domex. It is only when the impugned advertisement is observed audio visually, as it should be, that one can connect thin toilet bowl cleaners with the colour blue. This exercise demonstrates that what is being shown in bad light is not just blue toilet bowl cleaners or not just thin toilet cleaners, but thin and blue toilet bowl cleaners. On behalf of the defendant it had been contended that the colour blue was only incidental and the comparison was essentially between thick and thin cleaners. It was also contended that disparagement of cleaners associated with the colour blue could not have been the intention at all. This is so, because, the water in the clean toilet bowl is shown to be blue. Furthermore, even the defendant's product DOMEX is packaged in a blue container. Anyhow, even assuming that thin and blue toilet bowl cleaners are disparaged, the question is whether the plaintiff's product falls within this category.
12. In paragraph 15 (ii) of the plaint, the plaintiff has described its HARPIC POWER toilet cleaner as a thick cleaning liquid. The new variant HARPIC POWER OPTI THICK has admittedly been made a little thicker to enhance efficiency. Thus, the plaintiff's HARPIC POWER as well as HARPIC POWER OPTI THICK are both thick toilet cleaners and cannot be placed in the category of thin cleaners. To show that the impugned advertisement does not slander or disparage the goods of the plaintiff, a Venn diagram can be employed to easily and readily demonstrate that the plaintiff's products are not slandered or disparaged by the impugned advertisement.
The above diagram shows the rectangular universal set of cleaners within which are three sub-sets A, B and C represented by the circles marked A, B and C. The circle marked 'A' is the set of cleaners having low viscosity - thin cleaners. The circle marked 'B' comprises of the set of blue cleaners and the circle marked 'C' represents the set of high viscosity or thick cleaners. What the impugned advertisement disparages, if at all, are thin and blue cleaners, i.e., represented by the area marked 'AB' (an area which common to both circles A and B) which, in mathematical terms, is known as 'AnB', but the plaintiff's products - HARPIC POWER as well as HARPIC POWER OPTI THICK -- do not fall within this area marked 'AB'. They fall within the area marked 'BC' which is mathematically represented as 'BnC'. It is obvious that even if it be assumed that the impugned advertisement is disparaging, the disparagement is directed against thin and blue cleaners, the plaintiff's products do not fall within that class. Consequently, it cannot be said at this stage that the plaintiff's products have been slandered or disparaged by the impugned advertisement.
13. In view of this conclusion, it would not be necessary for me to examine the questions of delay, acquiescence and suppression raised on behalf of the defendant. The plaintiff has not been able to make out a prima facie case for the grant of an interim injunction.
This application is dismissed. No costs.