C.S. (O.S.) No. 375/2013. Case: Reckitt Benkciser (India) Ltd. Vs Hindustan Unilever Ltd.. High Court of Delhi (India)
| Case Number | C.S. (O.S.) No. 375/2013 |
| Counsel | For Appellant: Mr. C. M. Lall, Adv. with Ms. Nancy Roy, Ms. Ekta Sarin, Mr. Jawahar Lal, Advs. and For Respondents: Mr. Sandeep Sethi, Sr. Adv. with Ms. Rukmani Bobde, Mr. Kumar Shashank, Advs. |
| Judges | M. L. Mehta, J. |
| Issue | Civil Procedure Code - Order XXXIX, Rules 1, 2; Constitution of India - Article 19(1)(a) |
| Judgement Date | May 14, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
M. L. Mehta, J.
I.A. 3267/2013 (under Order XXXIX Rule 1 & 2, CPC)
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This is a suit for commercial disparagement. The plaintiff has sought an interim injunction restraining the defendant from publishing advertisements or using any depiction or any other indica which disparages the goodwill and reputation of the plaintiff''s product sold under the trade mark DETTOL HEALTHY KITCHEN. A brief summary of the controversy is as follows.
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The plaintiff''s case is that it has been involved with the manufacture of the famous antiseptic liquid under the trademark DETTOL for over 70 years and is a market leader of this segment with approximately 85% of the market share in India. Recently, the plaintiff has come up with a new product DETTOL HEALTHY KITCHEN Dish and Slab Gel", which is purportedly the first kitchen cleaner with an active ingredient (Lactic Acid) which helps kill germs. The plaintiff claims that the product has clinically been proven to have germ killing capabilities and is claimed to be much more efficacious than ordinary kitchen cleaners.
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To promote their new product, the plaintiff came out with an advertising campaign on television comparing the germ killing capabilities of its product and the defendant''s VIM LIQUID. In addition, the plaintiff also introduced a print advertising campaign. Both these advertisements purportedly contained truthful statements about the germ killing capabilities of the two competing products. Admittedly, the defendant herein filed a suit against the plaintiff for disparaging advertisement before the Calcutta High Court vide Suit No. TN 50 of 2013. However, the Court passed a consent order in this matter allowing the plaintiff to continue with the impugned television advertisement subject to small variations.
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The plaintiff contends that in retaliation, the defendant came out with an advertisement published in the Sunday Times Edition dated February 24, 2013, in which the defendant has purportedly disparaged the plaintiff and its brand DETTOL. It is contended that in the advertisement, the defendant has maliciously equated its product to a "Harsh Antiseptic". The question asked in the initial portion of the advertisement is:
"A Harsh Antiseptic or the power of 100 lemons - which one would you choose to clean your child''s tiffin?"
The plaintiff alleges that this reference in the advertisement was clearly directed to the plaintiff''s brand DETTOL being referred to as a Harsh Antiseptic. The plaintiff contends that an attempt has been made to misrepresent to the consumers that the plaintiff''s DETTOL ANTISEPTIC LIQUID and DETTOL HEALTHY KITCHEN have the same ingredients. It also contends that the defendant has attempted to misrepresent that the plaintiff has done nothing but repackage its Antiseptic Liquid as DETTOL HEALTHY KITCHEN and the reference to "harsh antiseptic" in itself is denigrating of the plaintiff''s brand DETTOL.
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The plaintiff contends that to further worsen the misrepresentation, the defendant''s advertisement mentions:
An Antiseptic is for cleaning wounds and floors. Would you use to clean the utensils your family eats from?
It contends that this statement further established the target brand to be that of the plaintiff''s DETTOL ANTISPETIC LIQUID which is extensively advertised for the use in cleaning wounds and floors, particularly in hospitals. The plaintiff has also sought to clarify that DETTOL ANTISEPTIC LIQUID and DETTOL HEALTHY KITCHEN have entirely different formulations. Though both the products have efficient germ killing capabilities, DETTOL ANTISEPTIC LIQUID contains chloroxylenol (PCMX), whereas DETTOL HEALTHY KITCHEN is said to contain Lactic Acid.
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The plaintiff also contends that the advertisement thereafter mentions
"NO ONE REMOVES GREASE BETTER
NO ONE REMOVES GERMS BETTER"
This claim is said to contain a disclaimer in very fine print stating "
compared to leading brands tested under lab conditions on selective organisms and as per lab cleaning test/consumer test."
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The plaintiff contends that this is a false statement because it is clinically tested that its product was more efficacious at germ killing than the defendant''s product, as evidenced from the SGS Report filed by the plaintiff. The plaintiff also submits that despite being more effective in respect of germ killing, it also has a toxicology report declaring that the plaintiff''s DETTOL HEALTHY KITCHEN does not result in any human health concern.
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