Hindustan Unilever Ltd. v. Reckitt Benckiser (India) Pvt. Ltd.

1. This is an appeal filed by the appellant herein (defendant in the suit) against the order dated 06.04.2018 passed in a suit for permanent injunction and damages on account of disparagement and unfair trade practices instituted by the respondent herein (plaintiff in the suit).

2. At the outset, it may be noted that the appellant/defendant had appeared before the learned Single Judge on a caveat having been filed. We are informed that the matter was heard before the pleadings 2018:DHC:2367-DB could be completed and after the grant of an injunction, time has been granted to the appellant/defendant to file the written statement and the matter has been placed before the Joint Registrar on 20.04.2018 for completion of the pleadings.

3. In the impugned advertisement, the appellant/defendant has compared its „Lifebuoy Soap‟ with the respondent‟s/plaintiff‟s product i.e. „Dettol Antiseptic Liquid‟. The advertisement appeared for the first time through the electronic media on 02.04.2018.

4. Mr.Chander M.Lall, learned Senior Advocate appearing for the respondent has contended that the suit was instituted within the shortest possible time on 04.04.2018 and the matter was listed for the first time on 5th April 2018 and thereafter on 6th April, 2018 when the impugned order was passed. By an order dated 06.04.2018, the appellant has been restrained from inserting or adding any such kind of piece/feature in the advertisement which would otherwise directly or indirectly result in disparaging the said product of the plaintiff/respondent herein. To appreciate the arguments of the learned Senior Counsels appearing in this case, we deem it appropriate to scan the storyboard of the impugned advertisement which we find at page 44 to 49 of this appeal which we extract herein below:- Screen Shots Description and Voice over Child Sneezing. Male Protagonist: Phir Se Bimar? (Translation: Sick again?) Male Protagonist: Ab se NahanekePani Mein Antiseptic Liquid MilanaPadega.. (Translation: From now on will have to add Antiseptic liquid in bath water) Bottom of the screen shows: FOR BATHING WHAT IS STRONGER THAN ANTISEPTIC LIQUID? Male protagonist is shown pouring antiseptic liquid in bath water A confident Female protagonist is shown acting as a Doctor saying: “Doctor Se Suno!” (Translation: Listen from the Doctor) Male Protagonist stops pouring Antiseptic Liquid in bath water and is shown looking with a disturbed expression towards the female protagonist. The Female protagonist is shown standing next to the sick child and pointing at him with a laser light. Female Protagonist states: Ye paanikekitanunikalega. (Translation: This will only remove germs from bath water) Female Protagonist: Par Body kekitanutoh… (Translation: But the germs on body…) Female protagonist is shown throwing laser light revealing many germs on the body of the sick child from his hand to his mouth depicting that the germs will travel from the sick child‟s hand to mouth. Female protagonist states: Yahan Se Yahan (Translation: From here to here) There is an illegible super at the bottom of screen stating “Creative visualization” Female protagonist is shown looking concerned while telling the father of the sick child “Aurphirhosaktihaibeemari!!” (Translation: And then it can cause diseases) Male protagonist is shown extremely concerned and distressed and asks the female protagonist “Par Nahanemeinisse strong kyahai?” (Translation: But what is stronger than this for bathing) A pack of Lifebuoy Total is shown being put on a slab causing the slab to be broken with its strength. Female protagonist answers the question posed by the male protagonist: Lifebuoy Strong... With Active Silver!! Screen shows the boy taking bath. The screen is split in two parts, one showing the boy bathing only with water containing Antiseptic Liquid and the other showing the boy applying Lifebuoy soap on his body. At the beginning of the split screen, the number of germs on the body of the boy on both sides of the screen are same. As the boys are shown to be bathing, while the number of germs on the body of the boy bathing with only water containing antiseptic liquid remain the same, the number of germs on the body of the boy bathing with Lifebuoy soap almost completely vanish. There is an illegible super at the bottom of the screen stating “Creative visualisation. As per lab test, based on prescribed quantity of antiseptic liquid in bath water, i.e. one teaspoon (5 ml) in one bucket (10 lts.)” The boy using water with antiseptic liquid is also shown being distressed while pouring water containing antiseptic liquid over himself, whereas the boy bathing with Lifebuoy is shown looking very happy. Female Protagonist: Jo de kitanuon se 100% Stronger suraksha. (Translation: which gives 100% stronger protection from germs) The screen shifts to a happy family with the child holding Lifebuoy soap and the mother caressing him. The female protagonist states: MeraStrong Boy!! (Translation: My Strong Boy) The child looks very happy and showcasing Lifebuoy soap says: Lifebuoy Strong!! The entire family is shown looking very happy. Pack of Lifebuoy soap is shown on the screen with active silver around it and a voiceover: Lifebuoy. An illegible super at the bottom of screen is shown stating “Creative visualisation. As per lab test”

5. The prime grievance of the learned Senior Counsels appearing for the appellant/defendant is that in the absence of a reasonable opportunity having been granted to file the written statement and reply to the application under Order 39 Rules 1 & 2 of CPC, serious prejudice has been caused to the rights of the appellant/defendant. It is also contended that the learned Single Judge has extensively relied upon an order passed in CS(OS) No.1832/2012 dated 13.05.2013 in an earlier litigation between the parties concerning the same very product. Mr. Sudhir Chandra, learned Senior Advocate appearing for the appellant contends that the terms as set out in the said order do not apply to the facts of the present case and the advertisement in question. He contends that the order dated 13.05.2013 had laid down the following four terms before the advertisement subject matter CS(OS) No.1834/2012 could be released: a. remove the „toys‟ in the advertisement. b. remove the phrase “two dhakans” and the particular portion featuring the lady shown pouring liquid in the bucket by holding the bottle of the antiseptic liquid in her hand. c. remove the shot showing the cloud formation. d. since green is the colour majorly associated with „Dettol‟, therefore also change the colour scheme showing the comparison between the two products in the television commercial and change the green colour to a different shade.

6. It is urged before us that in the present advertisement no toys have been shown. The catch line of the respondent/plaintiff „two dhakkans‟ is not part of the present advertisement. The liquid poured in the bucket of water does not show a cloudy formation; a feature specific to the product of the respondent/plaintiff and the green colour which is majorly associated with Dettol has not been used. Thus, for the learned Single Judge to have been persuaded by the order dated 13.05.2013, is misplaced for the reason that in the impugned advertisement neither the product of the respondent/plaintiff has been shown nor the bottle, which could identify the antiseptic liquid nor the catch line „two Dhakkans‟ nor the green colour has been shown. It is also contended that the advertisement does not show the product of the respondent/plaintiff in a poor light nor there is anything disparaging against the respondent‟s/plaintiff‟s product. It is highlighted by Mr. Sudhir Chandra that it is also the case of the respondent/plaintiff that the antiseptic liquid is a germ killing product and the use of Dettol antiseptic liquid is prescribed to ensure that the water used for bathing is free from germs.

7. Mr.Sudhir Chandra, learned Senior Advocate has drawn the attention of the Court to para 19 of the plaint, which we reproduce as under:

8. Relying on para 19, Mr.Sudhir Chandra contends that it is the case of the respondent/plaintiff that Dettol Antiseptic liquid is not a substitute for soaps or bathing gels or any other product and thus, the advertisement in fact, only reiterates what is the stand of the respondent/plaintiff and has been averred in para 19 of the plaint that the antiseptic liquid be used to remove germs from the bathing water and not the germs from the body. It is also the case of the appellant/defendant that in case, reasonable opportunity is granted for filing the written statement and reply to the IA filed under Order 39 Rules 1 & 2, the appellant would be able to show that the comparison made in the advertisement is truthful and not that the product of the appellant has been puffed up or the product of the appellant/defendant has been denigrated in any manner. In the light of the above submissions, Mr. Sudhir Chandra has prayed that the interim order dated 06.04.2018 be vacated, since the respondent has not been able to make out a strong prima face case nor balance of convenience is in favour of the respondent nor the respondent has been able to establish that irreparable loss would be suffered by them.

9. Mr. Chander M. Lall, learned Senior Advocate appearing for the respondent/plaintiff submits that besides the reliance placed by the learned Single Judge on the judgment passed on 13.05.2013, various other grounds were also urged by him but the same may not have been reflected in detail in the order as the pleadings were yet to be completed and a full hearing is to be granted to both sides after the pleadings are completed. Mr. Lall also submits that the parties before this Court have been locked in litigation in various matters including two suits which were filed before the Calcutta High Court by the appellant/defendant and two suits were filed by the respondent/plaintiff. The Calcutta High Court granted injunctions in all the four suits. However, the products in three suits were different being „Vim‟ on the one hand and „Dettol Healthy Kitchen‟ on the other, while in one case the products were the same „Dettol Antiseptic Liquid‟ and „Lifebuoy Soap‟. Mr.Lall contends that the orders passed in the aforesaid four matters have attained finality although the suits are still pending as an appeal filed before the Division Bench by both the parties in all the four matters were dismissed with slight modifications to the order of the learned Single Judge and thus the orders have attained finality. Mr.Lall has relied on the order passed by the learned Single Judge of the Calcutta High Court extensively in support of his submissions that the grounds sought to be urged by the appellant before this Court today were also raised before the Calcutta High Court and the same were rejected. Mr.Lall has also submitted that the advertisement in issue falls foul of the Code for-Advertising Standards Council of India, the advertisement also falls foul of Section 4 of the Drugs and Magic Remedies (objectionable advertisement) Act, 1954 read with Drugs and Cosmetics Act. It has also been contended that the similar advertisement of the appellant/defendant has been restrained by the learned Single Judge of this Court. The order which we have noticed in the aforegoing paras as also the order of the learned Single Judge of the Calcutta High Court, which was affirmed by the Division Bench of the Calcutta High Court, which we have also noticed in the aforegoing paragraphs. Mr. Lall has also relied on Hindustan Unilever Limited Vs. Gujarat Co-operative Milk Marketing Federation reported in (2017) 71 PTC 396 in support of his submission that merely because the products of the respondent/plaintiff has not been named would not mean that such an advertisement would be permissible. Mr.Lall has also contended that the balance convenience is in favour of the respondent/plaintiff as it has repeatedly been held that the advertisements on electronic media are likely to have a stronger impact on the public at large and at a quicker pace than the print media advertisement. It is also submitted by Mr. Lall that no prejudice would be caused to the appellant/defendant, if the injunction is continued till such time the pleadings are complete and the matter is finally heard and on the contrary, the product of the respondent/plaintiff would be shown in a poor light and public would be misled in case the interim order is vacated.

10. Mr. Sudhir Chandra has relied on a judgment of the Division Bench of this Court in Dabur India Ltd. Vs. Colortek Meghalaya Pvt. Ltd. & Ors. reported in ILR (2010)

IV DELHI 489.

11. We have heard learned counsels for the parties.

12. We have examined the impugned order. A careful reading of the impugned order passed by the learned Single Judge in CS (OS) no.1832/2012 would show that the learned Single Judge was persuaded by the reasoning in the order dated 13.05.2013. The aforesaid order of learned Single Judge has been quoted in the impugned order in para 3, which we reproduce below: