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CS (OS) 1359/2007. Case: Reckitt Benckiser (India) Ltd. Vs Hindustan Lever Limited. High Court of Delhi (India)

Judgment Cited in 2 Precedent Map Related
Vincent
Case NumberCS (OS) 1359/2007
CounselFor Appellant: Chander M. Lal, Shikha Sachdev and Kirpa Pandit, Advs and For Respondents: Gourab Banerji Sr. Adv., Aditya Narain, Sameer Pareekh, Sumit Lao, Nitin Thukral, Kush Chaturvedi and Arun Krishnan, Advs.
JudgesBadar Durrez Ahmed, J.
IssueMonopolies and Restrictive Trade Practices Act, 1969 - Sections 4, 12D, 36A(1), 36D; Consumer Protection Act, 1986 - Sections 2, 3; Design's Act; Specific Relief Act, 1963 - Section 41; Reserve Bank of India Act, 1934 - Section 4(2); Banking Regulation Act, 1949; State Bank of India (Subsidiary Banks) Act, 1955; Insurance Act, 1938; Civil ...
Citation2008 (151) DLT 650, 2008 (38) PTC 139 (Del)
Judgement DateJuly 07, 2008
CourtHigh Court of Delhi (India)

Judgment:

Badar Durrez Ahmed, J.

  1. This is a suit for permanent injunction and damages for disparagement and unfair trade practices. The plaintiff and the defendant are competitors. The plaintiff is aggrieved by the defendant's advertisement on television, which allegedly disparages the plaintiff's soap sold under the trade mark "DETTOL". The defendant's advertisement is for promotion of its soap " LIFEBUOY".

    Reliefs sought by the plaintiff:

  2. The plaintiff has prayed that the defendant be restrained by a permanent injunction from (i) issuing or telecasting the impugned advertisement, or in any other manner disparaging the goodwill and reputation of the plaintiff and its product sold under the trade mark DETTOL, in any other advertisements and in all media whatsoever including the electronic media; (2) using the depiction of the plaintiff's soap or any other soap deceptively similar to that of the plaintiff's in its advertisement or in any other manner disparaging the goodwill and reputation of the plaintiff and its product sold under the trade mark DETTOL; (3) using any other indicia whatsoever to associate with/depict the plaintiff or its products in its advertisements issued in any and all media whatsoever including the electronic media. The plaintiff also seeks damages to the extent of Rs 20,00,050/- for disparagement, denigration and tarnishment of its goodwill and reputation by the defendant by its impugned advertisement. Additionally, the plaintiff has also prayed for punitive and exemplary damages against the defendant as well as for costs of the suit.

    The Plaint:

  3. It is stated in the plaint that the plaintiff has been involved in the manufacture of the famous antiseptic disinfectant under the trade mark DETTOL, for over 70 years and that the mark DETTOL has become synonymous with good hygiene and, today, it is a household name and is the most widely used antiseptic disinfectant in the country. It is stated in the plaint that the history of DETTOL dates back to the year 1929 when the DETTOL antiseptic liquid was developed. It is alleged, that as an antiseptic germ disinfectant, DETTOL has an unparalleled reputation in the medical profession. It is also averred that DETTOL has continuously evolved to meet modern day demands, and now incorporates a range of innovative antiseptic, disinfectant and cleaning products ranging from antiseptic liquid, hand wash and the DETTOL toilet soap which has been manufactured and sold by the plaintiff continuously since 1981.

  4. It is further stated in the plaint that the present action concerns the alleged intentional and deliberate disparagement by the defendant of the plaintiff's DETTOL toilet soap which is identified by the members of the trade and public by its colour and its new modern, distinctive and unique shape, a representation of which is as under:

    Note: Vernacular matter has not been reproduced.

    [Front view of DETTOL Original soap]

    It is stated that on the front of the soap the trade mark "DETTOL" and the sword devise is clearly visible. The plaintiff contended that the consumers recognise the plaintiff's product by the colour and distinctive shape of the soap.

  5. It is further alleged that the DETTOL toilet soap, when packed, is also identified by its distinctive green coloured packaging. A representation of the plaintiff's product packaging is as below:

    Note: Vernacular matter has not been reproduced.

    [Photograph of the wrapper of Dettol Original soap]

  6. It is further stated in the plaint that in 1981 the DETTOL soap was launched as an orange coloured bar and rectangular in shape without any curves. The present shape with the curved edges and the curvature in the middle was adopted by the plaintiff on or about May, 2006. The new improved DETTOL soap has an all new modern shape with curved edges and a distinctive curvature in the middle which helps consumers easily identify and distinguish the product from other products. It is averred that while there are other orange coloured soaps in the market, the plaintiff's soap is the only one with the distinctive shape, as indicated above. It is also stated that the new improved DETTOL soap has three variants available in the market. One being the said DETTOL Original and the two others being DETTOL Skincare, a white soap, and DETTOL Cool, a blue soap. As per the plaint, out of the three variants, the DETTOL Original bar of soap,which has an orange colour, is the most popular. According to the plaint, the sale of DETTOL Original constitues 80% of the total DETTOL soap sales.

  7. The plaintiff has further stated that the packaging of the soap has always been of the distinctive green and white colour combination and the packaging has become synonymous with the famous DETTOL brand of the plaintiff. It is alleged that the purchasing public perceives the orange coloured bar with its distinctive shape and the distinctive green and white packaging to be synonymous with the DETTOL Original soap. It is alleged that the plaintiff has been continuously and uninterruptedly marketing its DETTOL products with the distinctive packaging consisting of the green and white colour combination including sword device in India since the year 1933.

  8. The plaintiff has further stated in the plaint that it had recently announced in a press release that it is contemplating to introduce new variants of its flagship brand DETTOL and it launched a new ad campaign -- "Surakshit Parivar" -- to create awareness of the practice of hygiene at the family level. The plaintiff has allocated a budged of about Rs 5 crores for the aforementioned programme. It is also stated that by virtue of extensive sales and sales promotion activities, the orange coloured DETTOL soap, its new curved shape along with the distinctive green and white packaging is associated exclusively with the Plaintiff.

  9. It is alleged that the plaintiff was shocked when it was recently brought to its attention that the defendant has introduced an advertisement on television, which intentionally and deliberately disparages the soap of the plaintiff sold under the trade mark DETTOL and the unique and distinctive packaging described above. The defendant's said advertisement is for its LIFEBUOY soap. The plaintiff alleges that a bare viewing of the said advertisement would be sufficient to convince this Court of the malicious intention of the defendant to increase the market share of its LIFEBUOY soap by tarnishing the goodwill and reputation of the plaintiff's soap i.e. DETTOL Original Soap.

  10. It is alleged that the soap which has been disparaged in the impugned advertisement is virtually identical to the plaintiff's product. The contours and the curvature in the middle on the toilet soap in the defendant's advertisement is virtually identical to the contours of the plaintiff's DETTOL Original soap. The only difference being that the name of the plaintiff's product and the logo are not shown in the advertisement. The colour of the soap in the defendant's advertisement is also virtually identical to that of the DETTOL Original soap of the plaintiff. The packaging of the toilet soap used in the defendant's advertisement is also similar to the packaging of the plaintiff's said soap. It is alleged that from the above, it is apparent that the soap featuring in the defendant's advertisement is designed to give an impression to the buyers that the offending soap is the plaintiff's DETTOL Original soap. The advertisement then, allegedly, proceeds to disparage the soap in the following manner:

    (i) The advertisement begins with a couple returning home after getting wet in the rain. The wife then proceeds to take a new soap to go and have a bath. The green coloured packaging, the orange coloured soap and the distinctive DETTOL shape is clearly visible in the advertisement. The intention of this scene is to convey to the audience that the offending soap pertains to an established soap i.e., DETTOL Original soap presently being used by the family.

    (ii) The next frame shows the husband, a medical doctor, and the children telling the lady of the house not to use the soap and the vocals state:

    Oh God bachaa lena naadaan ko aql dena.... Hum sab ko bachaa lena.

    It is alleged that the use of a doctor protagonist is once again relevant as DETTOL is an established brand in the medical profession.

    (iii) The next frame shows the doctor husband explaining to the wife the reason as to why she should not use the offending soap and, instead, should use the Defendant's LIFEBUOY soap by stating that normal antiseptic soaps make the skin dry leading to cracks in the skin thereby permitting the germs to enter the cracks in the skin while the defendant's soap fights germs and keeps the skin protected. According to the plaintiff this scene is clearly intended to give out the message that the Plaintiff's soap is not effective against fighting germs whereas the Defendant's soap is effective against fighting germs. The words used in the advertisement are:

    Dua ki zarurat padegi is dawa ke saath. Aam antiseptic sabun twacha ko rukha kar dete hai jis se dararon mein kitanu ghus jaate hain...isi liye naya Lifebuoy skin guard jo kare kitanuon per waar aur banaye suraksha ki bhi deevar.

    According to the plaintiff it is relevant to mention that as DETTOL is used in respect of an extremely well known brand of antiseptic liquid, the use of the term "dawa" (medicine) is clearly intended to draw the attention of the viewer to the Plaintiff's product.

    (iv) In the next frame the lady is then shown to go and have a bath with the Defendant's soap and come out very satisfied with the same. According to the plaintiff, this falsely indicates that the defendant's soap is effective against fighting germs while the plaintiff's DETTOL soap is not.

  11. It is further alleged by the plaintiff that the defendant's said advertisement is nothing but a slanderous attempt of the defendant to increase the market...

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