TMI Blog2013 (9) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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Triclosan concentration to 0.2% and added fluoride to the formation - Ultimately, the complaint before the MRTPC was withdrawn since the Plaintiffs themselves had added fluoride and 0.2% Triclosan to Colgate Strong Teeth.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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs brand and products. 2. The above suit was filed by HUL on 13th August 2013. It was first listed on the same date when Defendant HUL appeared on caveat. Mr. N.K. Kaul, learned Senior counsel for HUL sought one day s time to respond to the application filed by the Plaintiffs for an ad interim injunction. The application was set down for hearing on the next day i.e. on 14th August 2013 i.e. at 3 p.m. 3. On 14th August 2013, the short reply filed by the Defendant and the enclosed documents were taken on record in the Court. A copy thereof was served on learned counsel for the Plaintiffs. 4. The impugned television commercial, provided by the Plaintiffs in a CD and Defendant in a flash drive, was viewed in the Court several times during the course of arguments. The print advertisement which appeared in the front page of the newspaper Hindustan Times New Delhi Edition dated 11th August 2013 was produced in the Court. Submissions on behalf of the Plaintiffs 5. Mr. C.M. Lall, learned counsel for the Plaintiffs submitted that the claim made in the impugned advertisements by HUL that Pepsodent could deliver 130% germ attack power was blatantly false. According to him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be long enough for the full message to be read by an average viewer on a standard domestic TV set. For print ads, the font size of the Supers should be a minimum 6 and 7 points for a 100 column centimeter or less and more than 100 column centimetre or equivalent size ads respectively. 8. Mr. Lall submitted that HUL had a history of making false claims in respect of its products. He referred to an order dated 5th and 6th November 1997 of the Monopolistic and Restrictive Trade Practices Commission ( MRTPC ) which restrained HUL from claiming that Pepsodent was 102% better than Colgate. In that advertisement HUL had not expressly named the competing product as Colgate but had used the expressions the famous and renowned toothpaste and leading toothpaste . The appeal against the said order filed by the HUL had been dismissed by the Supreme Court by an order dated 17th December 1997 reported as Hindustan Unilever Limited v. Colgate Palmolive AIR 1998 SC 526. 9. Mr. Lall submitted that the claim of 130% is not just a gimmick but trickery. The figure of 130% was against a base toothpaste that has no antibacterial actives, as was explained with an asterix mark on the packaging of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have enhanced the delivery of Triclosan in the mouth. The claim was that Triclosan remains in the mouth four hours after brushing. It was submitted that the TV commercial purports to depict a preventive cavity test when there is no such known test in the world of dentistry, and that the Colgate boy appearing on the left side of the TV screen is shown to have failed the cavity test whereas the Pepsodent boy appearing on the right side of the TV screen not only passes the test but the Colgate boy also concedes this. Mr. Lall referred to the expressions of the faces on the mothers of the respective boys and submitted that the mother of the Colgate boy was unhappy and worried which, according to him, showed Colgate in a poor light. He focussed on the voice over towards the end of the TV commercial which claimed that Pepsodent was 130% better than Colgate which, according to him, was a wholly false claim when in fact Colgate Strong Teeth was indexed at 100%. He submitted that comparison if at all had to be of like products, in which event Colgate Total toothpaste, which contained 0.3% Triclosan, should have been taken up for comparison and not Colgate Strong Teeth. The Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aul, learned Senior counsel appearing for the Defendant HUL, reiterated the two principles settled in the decision in Dabur Colortek. One was that the comparative advertisements were permissible. The second was that the manufacturer of a product could claim that his product was better than that of the competitor. He submitted that some element of denigration in that process was inevitable. What the Court has emphasised is that it should not be malicious so as to cause injury to the product of the competitor. He referred to the decision in Marico Limited v. Adani Wilmar Ltd. 199 (2013) DLT 663 where the Single Judge applied the principles settled in Dabur Colortek and declined an injunction in similar circumstances. 15. Mr. Kaul submitted that Courts ought not to adopt a hyper technical view and analyse an advertisement like a statute or a clause in some Will or agreement. He submitted that, taken as a whole, neither the TV commercial nor the print advertisement in the present case rubbishes the product or the brand of the Plaintiffs. He submitted that while HUL in this advertisement did claim that Pepsodent GSP was a better product, there was no denigration as such of Colgate Str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that comparative advertisement is permissible as long as it does not have negative overtones. It was further pointed out that for a Plaintiff to succeed in an action based on malicious falsehood, the necessary ingredients are that (i) a false statement was made which is calculated to cause financial damage (ii) that it was made maliciously with an intention to cause injury and (iii) the impugned statement has resulted in a special damage. The law in England was referred to as laying down that: (i) a trader is entitled to say that his goods were the best; in doing so he could compare his goods with another (ii) say that his goods are better than that of the rival trader in this or that respect (iii) whether the statement made was disparaging of his rival s product depended on whether it would be taken seriously by a reasonble man ; an alternative test would be whether the trader had in fact highlighted any specific defect in his rival s goods and (iv) a statement made by a trader puffing his own goods was not actionable. Tested on the anvil of the above principles, the impugned advertisement in that case was held not to constitute disparagement and prima facie did not fall within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible. (e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation. These propositions have been accepted by learned Single Judges of this Court in several cases, but in view of the law laid down by the Supreme Court in Tata Press Ltd. v. MTNL (1995) 5 SCC 139 that false, misleading, unfair or deceptive advertising is not protected commercial speech, we are of the opinion that propositions (a) and (b) above and the first part of proposition (c) are not good law. While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if does so, the advertiser must have some reasonable factual basis for the assertion made. It is not possible, therefore, for anybody to make an off-the-cuff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the contentions of either party. 23. The Court is aware that the advertisements have to be viewed as a whole and not analysed like the provisions of a statute. Turning first to the TV advertisement, the Court is of the view that too much cannot be read into the expressions on the faces of the mothers of the Colgate and Pepsodent boys respectively to connect those expressions to the quality of the products. The running theme of the TV advertisement is a comparison between the two products to emphasise that Pepsodent GSP is a better toothpaste than Colgate Strong Teeth when it comes to a toothpaste having Triclosan as an ingredient. The indexing of the Colgate Strong Teeth at 100% and in relation thereto showing Pepsodent GSP as having 130% germ attack power is significant from the point of view of the truthfulness of the claim. 24. The story line of the TV advertisement begins with the Preventive Cavity Test with the Colgate boy on the left side of the screen with his mother standing behind him and the Pepsodent boy on the right side again with his mother behind him and both of them beginning to brush their teeth. There is no zooming in on the teeth of either bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it that way. It is arguable that the appearance of the two indices at the bottom of the left and right screens as well as the Super which shows that Colgate Strong Teethy is indexed 100% and Pepsodent Germi Check 130% will enable a discerning viewer to appreciate the comparison in its proper perspective. In any event, the claim of 130% germi check power appears more consistent with the Defendant puffing up Pepsodent GSP to show that it is better than Colgate Strong Teeth. It is difficult to view this as denigrating, slandering or rubbishing Colgate Strong Teeth. 26. Next it was contended by Mr. Lall that from this moment onwards, the Triclosan soldiers are shown to be increasing on the Pepsodent side whereas they are shown to be either decreasing or non-existent on the Colgate side. Ultimately, the entire screen is taken up by the Triclosan soldiers on the Pepsodent side. When the sequence is seen in the context of the advertisement, the explanation, as suggested by the Defendant, appears plausible. The Defendant is trying to show that Triclosan is retained better and longer in teeth that have been been brushed with Pepsodent GSP. Secondly, it is attempting to show show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two products and showing one product to be better than the other. If one were to apply the Dabur Colortek principles, the impugned TV advertisement neither defames nor slanders Colgate Strong Teeth. It does not suggest that Colgate Strong Teeth is bad . Much less, as was suggested by Mr. Lall, does it convey that the use of Colgate Strong Teeth would result in cavities developing. The impugned print advertisement 29. Turning to the print version of the advertisement, the Court is not persuaded to agree with the Plaintiffs that the word Attaaack appearing in the phrase It s time to Attaaaack! actually means that it is time to attack Colgate and not the germs. This submission overlooks the statement immediately below: Pepsodent now better than Colgate Strong Teeth delivers 130% Germ Attack Power . This is further clarified at the bottom of the advertisement where the words Non-stop Attaaaaack! is above the words (although in smaller font) On cavity causing germs . The attention span of a viewer of a TV commercial is presumably less than that the reader of a printed advertisement. The word attaaaaack appearing in the print advertisement is not likely to be understo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... san 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. It is thus argued by Mr.Kaul that the said event actually resulted in superior products being made available to the consumer and the market leader was forced to change its formulation which it continues to do till date. The above submissions warrant a detailed examination by the Court whether there is justification for the Plaintffs charge that launching disparaging advertisements against a market leader s product is a habit of the Defendant. That exercise is not required to be undertaken at this stage. 33. Advertisements that compare 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 cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
