Colgate Palmolive Company and Anr.
Hindustan Unilever Ltd.
FAO (OS) No. 396/2013
before the Hon’ble High Court of Delhi at New Delhi
Decided on: 10.12.2013
The Plaintiff filed a suit against the Defendant for permanent injunction restraining disparagement of it’s product Colgate Strong Teeth along with an application for interim relief.
The Defendant had released two advertisements, one a Television commercial and the other a print advertisement. The advertisement showed the Pepsodent Germi check product of the Defendant to be superior to the Colgate Strong Teeth on the basis of a scientific study.
The Plaintiff’s application for interim relief was dismissed vide order dated 21.08.2013. The Plaintiff filed an appeal against the order of the Hon’ble single judge which was disposed of with certain directions whereby liberty was granted to the Plaintiff to approach the single judge with a fresh application for injunction and place on record such new material.
The Plaintiff filed a fresh application seeking interim injunction and also a review petition against the order dated 21.08.2013. Review Petition was dismissed by the Hon’ble single judge and only notice was issued on the injunction application. Aggrieved by the said order, the Plaintiff filed a composite appeal against the order dated 21.08.2013, order dated 27.08.2013 passed in the review petition and order dated 27.08.2013 passed in the fresh application seeking interim relief.
The advertisement per se is disparaging and defaming.
Even though the impugned advertisements may be construed as not disparaging of the products of the appellant by some viewers, nonetheless, the court would interdict such advertisements, if the advertisements were capable of being construed differently by other consumers and the ‘multiple meaning rule’ will apply in this particular case.
The correlation which is sought to be portrayed between higher levels of Triclosan and cavities is contended to be malicious and misleading insofar as it indicates that Colgate’s product is in any manner inferior in respect of preventing cavities compared to Pepsodent’s product as a minimum level of Triclosan is required to kill germs, ranging from 0.2-03 ppm and any number above it, how higher it may be is of no use in preventing cavities.
There are several reasons of tooth decay and plaque bacteria by itself does not cause cavities.
Pepsodent’s product does not have the quality of sustained release of retained Triclosan.
Only Colgate Total (which is another product manufactured by the Plaintiff) which contains ‘Gantrez‘ which permits sustained release of Triclosan.
The ‘Super’ (the fine print about the test conducted and result obtained) is not visible when impugned TVC is viewed on a normal TV.
Present appeal is a composite appeal and is against three orders, one of which is an order dismissing the review petition and no appeal lies against the order dismissing a review petition. The second order is an order of issuance of notice and thus is not an appealable order. The third order is the order dated 21.08.2013 of dismissing the application for interim injunction and as the Plaintiff had earlier filed an appeal and the Plaintiff was given liberty to file a fresh application, the impugned order can only be challenged after the fresh application is decided.
The impugned advertisements are comparative advertisement and are permissible.
The impugned advertisements do not disparage the product of the Plaintiff neither denigrate goodwill and reputation of the Plaintiff.
The advertisement has to be views as a whole and the test of an average person with imperfect recollection is applied for determining disparagement.
The Hon’ble Court rejected the preliminary objections raised by the Defendant which were with respect to challenge to the order dated 21.08.2013 and the order dated 27.08.2013 vide which notice on the fresh application was issued to the Defendant. However, the Court accepted the fact that no appeal against the order dismissing the Review Petition is maintainable.
The Court observed that the ‘multiple meaning rule’ will not apply in this particular case. As the aid to ‘multiple meaning rule’ must be taken only in such circumstances where two plausible meanings are possible and it is probable that certain viewers (readers) would adopt a view which is disparaging.
On the issue, that whether the impugned TVC is disparaging, the Hon’ble Court was of the opinion that a scientific basis is sought to be supplied for the expression ―130% better. The erroneous usage of percentage as a measure may be ignored but the statement that Pepsodent is better then Colgate in respect of combating cavity causing germs is, undoubtedly, a statement of fact. The message that Pepsodent’s product is better than Colgate’s product in combating tooth decay (cavities) is the message that the impugned TVC delivers and this is a serious representation of fact. Thus, the question that requires to be addressed is whether this claim by the respondent is truthful or not.
The co-relation between higher concentration of Triclosan after four hours of usage of Pepsodent’s use as claimed by the Defendant and cavity prevention qualities of the two compared products is vital to determine the truthfulness of the impugned TVC. In the event, it is found that this correlation is illusory and a higher concentration of Triclosan in dental plaque does not have a proportionate impact in combating tooth decay or germ.
The disclosure of the basis on which the message of the impugned TVC is predicated (i.e. the Super indicating that basis to be In vivo study) would not be an adequate defence if the message conveyed by the impugned TVC advertisement is found to be untruthful. It was observed that this aspect of the matter has not been considered by the learned Single Judge.
In the event the learned Single Judge, on the basis of the material placed by the parties, comes to a conclusion that the appellant‘s contention that higher concentration of Triclosan as claimed by the respondent does not, prima facie, establish that Pepsodent’s product is superior in its efficacy to combat tooth decay in comparison with Colgate’s product then in such event the telecast of the impugned TVC would be liable to be interdicted as the balance of convenience is squarely in favour of the Plaintiff.
Print advertisement was found to be prima facie disparaging and the Court observed that even if it assumes the representation that Pepsodent is more effective in combating germs 4 hours after brushing in comparison with Colgate’s product, even then, prima facie, the advertisement would be disparaging as it also conveys the message that Colgate is ineffective and lacks the requisite quality to maintain oral hygiene and combat tooth decay and its usage, as depicted by the Colgate child, would result in the user ending up with a tooth related ailment. The Hon’ble Court relied on Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. & Anr, to hold that if a competitor defames his competitor and it’s goods, the same is not permissible.
The TVC cannot be said to be per se disparaging.
The voice over at the end of the impugned TVC which states ―Naya Pepsodent Germi Check Colgate Ke Mukable 130 pratishat Germ Attack Power is misleading and inaccurate as it covers not only the concerned product of Colgate in the advertisement but all products of Colgate. The same is required to be deleted from the TVC or at the option of Defendant/Respondent suitably modified to refer only to Colgate Strong Teeth.
The ‘Super’ should be clearly visible when the TVC is viewed on a television set.
The Court directed the Hon’ble Single Judge to consider afresh the aspect that the essential message conveyed by the impugned TVC is prima facie truthful of misleading.
The Defendant/Respondent was restrained from publishing the impugned print advertisement.