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2013 (9) TMI 543 - HC - Companies LawInterim Injunction - Whether there should be an interim injunction restraining the Defendant Hindustan Unilever Limited from publishing and/or telecasting the advertisements launched by it for its product Pepsodent Germicheck Superior Power toothpaste in the print and electronic media – Held that:- The Court was not persuaded to hold at this stage that the impugned TV advertisement or the impugned printed advertisement by HUL was disparaging of or denigrating the product Colgate Strong Teeth of the Plaintiffs - The Court was not satisfied that the Plaintiff had made out a prima facie case for the grant of an ad interim injunction as prayed for. The Court came to a prima facie conclusion on facts that the depiction of the use of the Plaintff’s product, liquid or soap, did not lead to removal of germs to the extent the competitor’s product did, and that this was disparaging of the Plaintiff’s products - the facts in the present case do not persuade the Court to come to a similar conclusion at this stage. As far as the MRTPC decision was concerned, it was pointed out that the injunction against the advertisement was only till such time an expert panel verified the veracity of the claims of Colgate - It iwa stated that at that stage Colgate Strong Teeth used to be an ordinary chalk based toothpaste without any anti-germ actives - When Pepsodent was launched as a superior product, Colgate introduced Triclosan with a 0.1% concentration thus giving the consumer a superior choice - Thereafter, Pepsodent increased the Triclosan concentration to 0.2% and added fluoride to the formation - Ultimately, the complaint before the MRTPC was withdrawn since the Plaintiffs themselves had added fluoride and 0.2% Triclosan to Colgate Strong Teeth. Advertisements that compared the product of a trader with the product of a market leader can offer the consumer better information about the product - They can also help to improve the overall quality of like products in the market and, in that process, the product of the market leader - Advertisements when viewed in a positive light can be seen as challenging the market leader to offer a better product at a competitive price - In the world of marketing, these were acknowledged business strategies adopted by traders having to compete in a market dominated by one or a few players - The market leader should view this as an opportunity to offer a superior product at a competitive price. The Plaintiffs surely do not suggest that preferences of male children of a certain school-going age group would significantly impact the Plaintiffs’ entire market share in toothpastes, a product which by its very nature commands loyalties and habit of use by the average consumer, spread across genders over a range of age groups - The choice of toothpaste, the use of which is perhaps the first activity of the day for many an average consumer, would depend on a variety of factors - Only evidence at a trial can possible demonstrate whether the impugned advertisements showing the Colgate child switching his preference to Pepsodent GSP had the potential of swinging loyalties of all or a part of a different consumer cohort to the competitor’s product - it was possible that “aggressive or catchy advertising may cause a partial or temporary damage to the plaintiff, but ultimately the consumer would be the final adjudicator to decide what is best for him or her.”
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