CS (OS) No. 2173/2009. Case: S. C. Johnson and Son, Inc and Another Vs Buchanan Group Pty Limited and Others. High Court of Delhi (India)
| Case Number | CS (OS) No. 2173/2009 |
| Counsel | For Appellant: Dr. Abhishek Manu Singhvi, Sr. Advocate with Ms. Pratibha M. Singh & Mr. Deepak Gogia, Advocates and For Respondents: Mr. Ashok Desai & Mr. Rajiv Nayar, Sr. Advocates with Mr. Sameer Parekh, Mr. Sumeet Lall & Ms Rukmini Bokde, Advocates |
| Judges | Rajiv Shakdher, J. |
| Issue | Code of Civil Procedure, 1908 - Order 39 Rules 1, 2; Section 151 |
| Citation | 2010 (42) PTC 77 (Del) |
| Judgement Date | December 08, 2009 |
| Court | High Court of Delhi (India) |
Judgment:
Rajiv Shakdher, J.
IA No. 13875/2009 (O. 39 R. 1&2 of CPC by pltf.)
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By this order I propose to dispose of the captioned application preferred by the plaintiffs under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'). The factual matrix, in the background of which, the application has been moved is as follows:-
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Plaintiff No.1 is a company which is incorporated under the laws of United States of America, having its registered office in that country. Plaintiff No.2 is a subsidiary company of plaintiff No.1. Plaintiff No.1 evidently holds 99% share in plaintiff No.2 through its two subsidiaries i.e., Johnson's Wax International GMBN, Switzerland and S.C. Johnson & Sons Investment Limited, Mauritius.
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Incidentally, balance 1% share holding in plaintiff No.2 is held by defendant No.3 through its wholly owned subsidiary Unilever India Exports Limited, a company incorporated under the laws of India.
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The plaintiffs are aggrieved since one of its product i.e., "MR. MUSCLE KITCHEN CLEANER" has been purportedly denigrated by virtue of an advertisement (which is appended as Annexure 2 to the plaint) telecast on television and played out on the internet by defendant Nos.1 & 2. It is the plaintiffs' case that the impugned advertisement is telecast and uploaded on the internet at the behest of defendant No.3 which manufactures a competitive product under the brand name "CIF Cream".
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It is averred in the plaint that its product "MR.MUSCLE KITCHEN CLEANER" has acquired for itself worldwide reputation in so far as household cleaning products, air freshners and insecticides are concerned. Resultantly, plaintiffs have its operations in 70 countries. The plaintiffs claim that their products sell in over 110 countries across the globe in Europe, Asia, Africa, Australia, North America, South America etc.
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It transpires that plaintiff No.1 acquired proprietary rights in the brand name "MR. MUSCLE", only in 1992 with the acquisition of Drackett Company from another company by the name Bristol-Mysers. It is also averred that brand/trade mark "MR. MUSCLE" has been registered in over 100 countries across the globe, which includes India. The brand/trade mark "MR. MUSCLE" was first registered in India on 19.01.1996. It is also claimed that "MR. MUSCLE" range of products were launched in India in April, 2007. To begin with, the plaintiffs launched the product in issue i.e., "MR. MUSCLE KITCHEN CLEANER" as also "MR. MUSCLE GLASS CLEANER". The range of products was expanded in August, 2008 to include "MR. MUSCLE KITCHEN CLEANER MULTIPURPOSE", and by December, 2008 other products such as "MR. MUSCLE TOILET AND BATHROOM CLEANER", "MR. MUSCLE ADVANCED TOILET CLEANER" and "MR. MUSCLE POWER TOILET CLEANER" were added. The purpose of these averments evidently is to show that in the field of household cleaners, the plaintiffs are the market leaders. In so far as the impugned advertisement is concerned, it is averred that "MR. MUSCLE KITCHEN CLEANER" amongst other products, launched under the brand name "MR. MUSCLE", is packed in a unique container which is distinctively shaped with appropriate indentation, carrying an orange colour, with a nozzle in the form of a trigger. The overall trade dress makes the plaintiffs' product unique and immediately identifiable from those of its competitors.
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In order to build the brand image of "MR. MUSCLE" products, in respect of "MR. MUSCLE KITCHEN CLEANER" alone, in 2008-09, the plaintiffs have purportedly incurred an advertisement expenditure of Rs 10.13 crores approximately, and between April 2009 to September 2009 the expenditure was Rs 2.86 crores. The plaintiffs have also averred that in 2007-2008 "MR. MUSCLE KITCHEN CLEANER", grossed sales equivalent to approximately Rs 2.60 crores; which has risen appreciably in the subsequent year i.e., 2008-09.
7.1 The plaintiffs' grievance is that defendant No.3 which is a competitor, has used the services of defendant nos. 1 & 2 to telecast the impugned advertisement to denigrate the plaintiffs' product "MR. MUSCLE KITCHEN CLEANER". This is brought out in the impugned advertisement by first comparing its own product "CIF Cream" with plaintiffs' product "MR. MUSCLE KITCHEN CLEANER" by using, amongst others, a virtually similar container which is, orange in colour, and has a similar trigger; and thereafter alludes to the fact that tough kitchen stains can be removed by using advanced products, that is, "CIF cream" with least amount of effort. In nutshell, by this comparison the defendants lead the consumers and viewers to believe that other kitchen cleaners including the plaintiffs' products are ineffective and worthless.
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In support of these averments, Dr. Singhvi appearing for the plaintiffs has: Firstly, taken me through the averments made in the plaint in order to demonstrate the plaintiffs' market leadership, its investment in advertisement, and the turnover achieved which is sought to be impacted by the impugned advertisement. Secondly, he has also stressed upon the fact that there is in the instant case clear attempt at denigrating the plaintiffs' product as there is a side by side comparison of the plaintiffs' product with that of the defendants. In order to buttress his submissions he relied upon the following judgments:-
Reckitt Benckiser (India) Ltd. vs Hindustan Lever Ltd. 2008 (38) PTC 139 (Del); Paras pharmaceuticals Ltd. vs Ranbaxy Laboratories Ltd. 2008 (38) PTC 658 (Guj) para 36 at page 673-674; Karamchand Appliances Pvt. Ltd vs Shri Adhikari Bros. & Ors. 2005 (31) PTC 1 (Del), Para 5, 21 & 33 at pages 5, 10 & 13; Reckitt & Colman of India Ltd vs Kiwi T.T.K. Ltd. 1996 (16) PTC 393 (Del).
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Apart from the above, Dr. Singhvi has also submitted that the balance of convenience is also in favour of the plaintiffs as defendant No.3 in its reply...
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