Valmiki J. Mehta ORDER
Valmiki J. Mehta, J.
I.A. No. 6421/2016 (under Section 149 CPC)
1. Let the plaintiff make up the deficiency in the court fee within one week from today. I.A. stands disposed of.
+CS(OS) No. 251/2016 and I.A. No. 6420/2016 (stay)
2. This application is filed by the plaintiff in this suit for injunction and damages against the stated disparaging video advertisement issued by the defendant. Plaintiff is Gillette India Ltd. which manufactures razors for hair removal and plaintiff sells these razors under the trademark VENUS and SIMPLY VENUS. Plaintiff's razors have a typical light blue colour. Defendant/Reckitt Benckiser (India) Pvt. Ltd. manufactures hair removal creams and sells the said hair removal creams under the trademark 'VEET'. The issue to be decided by this Court is the grant of ad interim injunction, till the disposal of this injunction application, against the defendant airing the impugned advertisement which as per the plaintiff is disparaging and contains falsehood. The relief clauses of the present application read as under:-
"a. pass an ex-parte ad interim injunction in favour of the Plaintiff and against the Defendant, its directors, officers, employees, agents, advertisers, distributors, franchisees, representatives and assigns or otherwise howsoever, from issuing, broadcasting, publishing or printing the Impugned Advertisement or in any other manner directly or indirectly, disparaging the goodwill and reputation of the Plaintiff and any of its products in 'hair removal category' including through any other advertisements and in all media whatsoever including electronic and/or print media; and
b. pass an ex-parte ad interim injunction in favour of the Plaintiff and against restraining the Defendant, its directors, officers, employees, agents, distributors, advertisers, franchisees, representatives and assigns or otherwise howsoever from issuing, broadcasting, publishing or printing the Impugned Advertisement or in any other manner directly or indirectly disparaging the goodwill and reputation of the Plaintiff and any of its products in 'hair removal category' including through any other advertisements and in all media whatsoever including electronic and/or print media; and
c) Pass such other or further orders as this Hon'ble Court deems fit and proper under the facts and circumstances of the case."
3. The suit and the interim application came up for the first time on 20.5.2016 when appearance was put in on behalf of the defendant who had lodged a Caveat. Crystallizing the issues with respect to claim of the plaintiff for interim injunction, on the said date the following order was passed:-
"I.A. No. 6423/2016 (for exemption)
Exemption allowed, subject to just exceptions.
I.A stands disposed of.
CAVEAT No. 436/2016
Since counsel for the caveator has entered appearance, the caveat stands discharged.
CS(OS) 251/2016 and I.A. Nos. 6420-22/2016
1. Learned senior counsel for the plaintiff has been heard with respect to the entitlement or otherwise of the plaintiff to grant of ex parte interim orders or ad interim orders. On behalf of the plaintiff it was argued that the impugned advertisement deliberates and disparages the product of the plaintiff and the plaintiff is aggrieved, inter alia, on account of the following facts:-
(i) The razor shown in the impugned advertisement being of blue colour and which will necessarily have co-relation only to the plaintiff's razor because plaintiff's razors are blue in colour and no other company sells razor of blue in colour.
(ii) In the impugned advertisement disclaimer of ordinary razors is shown in extremely fine print, whereas it should be bolder as to be seen in normal way by the ordinary customer.
(iii) The defendant while showing a razor for hair removal in the impugned advertisement does not show the razor with use of foam, etc., and which use of foam is a necessary pre-condition before use of the razor of the plaintiff and as provided in the printed instructions on the product of the plaintiff
(iv) Defendant claims that hair removal cream is twice as better as a razor and which assertion is not puffery but malicious because the same is not supported by any evidence of an independent/neutral body.
2. After learned senior counsel for the plaintiff was heard it transpires, and this is so stated on behalf of the defendant that the impugned advertisement was aired on dozens of channels with effect from 1.4.2016 and within April itself there were over 10,800 spots on the dozens of channels showing the subject advertisement of the defendant.
3. In my opinion, today on 20.5.2016, if the defendant is airing his advertisement from April, 2016 or from 1.4.2016, in a case such as the present, defendant would be entitled to file its pleadings within a reasonable time.
4. I take on record the statement made on behalf of the defendant through its counsels that the impugned advertisement was aired by the defendant with effect from 1.4.2016 as mentioned in the document of the agency Mc. CANN. In case what is stated on behalf of the defendant today, of airing of the impugned advertisement from 1.4.2016 is not true then the defendant's concerned official who is in- charge of the advertising throughout the country will be guilty of perjury and liable to be proceeded against accordingly.
5. Let defendant file its written statement and/or reply to the injunction application within a period of one week from today along with documents. The statement made on behalf of the defendant will be incorporated in its written statement and/or reply to the injunction application supported by an affidavit. Rejoinder thereto be filed within two days as prayed. Parties will ensure that their respective pleadings come on record on the next date of hearing.
6. List on 1st June, 2016."
4. Counsels for the parties were heard on 20.5.2016 and have been further heard today. The reply of the defendant to the interim application as also the documents filed by the parties have been perused. Plaintiff in addition to the issues crystallized vide Order dated 20.5.2016 also states that in the impugned advertisement the use of razors is shown to leave a stubble and this fact is false and hence defendant should be also restrained from airing the advertisement containing qua that portion which shows that use of the razors including that of the plaintiff, as leaving a stubble. Plaintiff also states that comparison of the cream of the defendant with razors is made in a portion of the impugned advertisement wherein the use of the razor is shown on a dark skin whereas use of the cream is shown to be on a fairer skin and thereby containing the undertone that use of the razors leads to darkening and uneven skin and which is a falsehood and disparagement of the plaintiff affecting its goodwill and sales of the razors and thus defendant be injuncted from airing this portion of the advertisement also.
5. The law with respect to disparaging advertisement is stated by the Division Bench of this Court in the case of Dabur India Ltd. Vs. Colortek Meghalaya Pvt. Ltd. and Anr. MANU/DE/0225/2010 : 167 (2010) DLT 278 (DB) and which judgment relies upon the ratios of the judgments of the Supreme Court. The relevant paras of this judgment are paras 10, 12 to 16 and 23 and these paras read as under:-
"10. In Tata Press Ltd. v. MTNL & Ors., MANU/SC/0745/1995 : (1995) 5 SCC 139 (paragraph 25) the Supreme Court held that "commercial speech" is a part of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution. However, what is "commercial speech" was not defined or explained. In fact, it does not appear to be possible to clearly define or explain "commercial speech" and, in any event, for the purposes of this case it is not necessary for us to do so. The reason for this is that the Supreme Court has said in Tata Press Ltd. (paragraph 23 of the Report) that advertising as a "commercial speech" has two facets thereby postulating that an advertisement is a species of commercial speech. The Supreme Court further said as follows:-
"23. ...Advertising which is no more than a commercial transaction is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech".."
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12. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., MANU/SC/0494/1999 : (1999) 7 SCC 1, the Supreme Court observed in paragraph 36 of the Report that a distinction would always have to be made and latitude given for an advertisement to gain a purchaser or two. This latitude cannot and does not mean any permission for misrepresentation but only a description of permissible assertion. In this context, reliance was placed by the Supreme Court on Anson's Law of Contract (27th Edn.) which says that commendatory expressions are not dealt with as serious representations of fact. The view remains the same in the 28th Edition (page 239). "A similar latitude is allowed to a person who wants to gain a purchaser, though it must be admitted that the borderline of permissible assertion is not always easily discernible."
13. The Supreme Court recognized and applied in Colgate Palmolive (India) Ltd. the rule of civil law, "simplex commendatio non obligat" - simple commendation can only be regarded as a mere invitation to a customer without any obligation as regards the quality of goods. It was observed that every seller would naturally try and affirm that his wares are good enough to be purchased (if not better than those of a rival).
14. On the basis of the law laid down by the Supreme Court, the guiding principles for us should be the following:-
(i) An advertisement is commercial speech and is protected by Article 19(1) (a) of the Constitution.
(ii) An advertisement must not be false, misleading, unfair or deceptive.
(iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one's product.
To this extent, in our opinion, the protection of Article 19(1) (a) of the Constitution is available. However, if an advertisement extends beyond the grey areas and becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection.
15. There is one other decision that we think would give some guidance and that is Pepsi Co. Inc. & Ors. v. Hindustan Coca Cola Ltd. & Another, MANU/DE/0896/2003 : 2003 (27) PTC 305 (Del.) (DB). In this decision, a Division Bench of this Court held that while boasting about one's product is permissible, disparaging a rival product is not. The fourth guiding principle for us, therefore, is: (iv) While glorifying its product, an advertiser may not denigrate or disparage a rival product. Similarly, in Halsbury's Laws of England (Fourth Edition Reissue, Volume 28) it is stated in paragraph 278 that "[It] is actionable when the words go beyond a mere puff and constitute untrue statements of fact about a rival's product." This view was followed, amongst others, in Dabur India Ltd. v. Wipro Limited, Bangalore, MANU/DE/1151/2006 : 2006 (32) PTC 677 (Del). "[It] is one thing to say that the defendant's product is better than that of the plaintiff and it is another thing to say that the plaintiff's product is inferior to that of the defendant."
16. In Pepsi Co. it was also held that certain factors have to be kept in mind while deciding the question of disparagement. These factors are: (i) Intent of the commercial, (ii) Manner of the commercial, and (iii) Story line of the commercial and the message sought to be conveyed. While we generally agree with these factors, we would like to amplify or restate them in the following terms:-
(1) The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed.
(2) The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product? In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect.
(3) The manner of advertising - is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.
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23. Finally, we may mention that Reckitt & Colman of India Ltd. v. M.P. Ramchandran and Anr., MANU/WB/0476/1998 : 1999 (19) PTC 741, was referred to for the following propositions relating to comparative advertising:
(a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.
(b) He can also say that his goods are better than his competitors', even though such statement is untrue.
(c) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others.
(d) He however, cannot, while saying that his goods are better than 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 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 or unsubstantiated claim that his goods are the best in the world or falsely state that his goods are better than that of a rival."
(emphasis added)
6. A reading of the aforesaid paras of the judgment in the case of Dabur India Ltd. (supra) shows that puffery and commendations of its goods by a manufacturer is permissible however that does not entitle the manufacturer to cause mis-representation or state falsehood. It is held that if advertisement extends beyond the grey areas and becomes a false, misleading, unfair or deceptive advertisement, such an advertisement would not have the benefit of protection of law. Also, the Division Bench has held that a person cannot falsely claim that his goods are better than that of his rival. Let us for the purpose of grant of ad interim injunction examine the ratio and the tests as laid down by the Division Bench of this Court in the case of Dabur India Ltd. (supra) as applied to the facts of the present case. This would be done issue by issue.
7. (i) The first issue is whether the defendant is justified in using the blue colour of the razor in the impugned advertisement and which is an identical colour to the razor of the plaintiff sold under the trademark VENUS and SIMPLY VENUS. It is an undisputed fact emerging from the record that colour of the razor shown in the impugned advertisement is of that blue colour which is the same blue colour as that of the plaintiff's razor. On behalf of the defendant, however, it is contended that shape of the razors manufactured and sold by the plaintiff are totally different than the razors shown in the advertisement and hence it is contended that there is no disparagement of the goods of the plaintiff in the impugned advertisement.
(ii) In my opinion, the argument raised on behalf of the defendant does not inspire confidence in this Court for the reason that defendant may well have used the razor of any other colour or even a completely different shade of goods instead of showing the shade of blue which is identical to that of the plaintiff. In view of the identical colour of the razors of plaintiff to the razor shown in the impugned advertisement a viewer of the impugned advertisement would therefore necessarily co-relate the razors in the impugned advertisement with the razors of the plaintiff. In para 13 of the reply to the interim injunction application given by the defendant, the defendant has compared the razors of the plaintiff with that as shown in the impugned advertisement, side by side, and it is seen that there is no manner of doubt that defendant has used identical colour for the razors in the impugned advertisement as that found of the razors of the plaintiff. Therefore, there is immediate co-relation on seeing the razors in the impugned advertisement of the defendant as that of the plaintiff inasmuch as in the fleeting snaps of the impugned advertisement it is not expected that the ordinary consumer will place any emphasis on the shape of the razors because what is most prominent in a short video advertisement is the colour of a product and not minute differences which are not emphasized in the few seconds of the advertisement, and which differences are more clear only when shown in the form of a print as has been done in para 13 of the reply to the application for injunction by the defendant. Therefore, use of the same blue colour in the same shade and which blue shade is the blue shade of the plaintiff's razors, the same will cause disparagement of the plaintiff's razors in the facts of the present case and consequently plaintiff will be caused grave and irreparable prejudice as also irreparable harm to its reputation and hence the defendant is for the present restrained from showing in its impugned advertisement the razors in the same blue colour of the plaintiff or any blue colour which is deceptively similar to the blue colour of the plaintiff's razors. In this regard, it would be relevant to note that in an earlier judicial proceeding being an appeal from an order passed in a suit initiated by the present defendant against the present plaintiff being CS(OS) No. 3190/2015 (appeal against an interim order in the suit filed by the present defendant and who was the plaintiff/appellant in FAO(OS) No. 622/2015), it was directed for the benefit of the present defendant and the plaintiff/appellant in those earlier judicial proceedings that the present plaintiff of this suit will not use the same colour of the spatula in the impugned advertisement of that CS(OS) No. 3190/2015 and which was of the same colour of the spatula of the plaintiff/appellant in those proceedings and the defendant in the present proceedings. Therefore, defendant by the same principle is bound not to use the razor in the impugned advertisement which would have the same colour of the razors of the plaintiff. The Order dated 14.12.2015 in the earlier FAO(OS) No. 622/2015 titled as Reckitt Benckiser (India) Pvt. Ltd. Vs. Procter & Gamble Hygiene and Health Care Limited & Anr reads as under:-
"We have heard the learned counsel for the parties. There has been a dispute with regard to the spatula that has been used in the video clip. It has now been admitted by the respondent that the spatula used in the video clip was that of the appellant.
In this backdrop, we direct that the spatula in the video clip be altered forthwith by using a different spatula of different colour.
The learned counsel for the respondent states that a different spatula of the colour 'baby blue' shall be used in the video clip henceforth. The modified video clip would be effective from 22.12.2015 onwards.
The learned counsel for the respondents seeks liberty to move an application for disposal of the suit in view of the order passed today. This is without prejudice to the rights and contentions of the parties.
The appeal stands disposed of."
8. (i) Coming to the second issue of whether the impugned advertisement is misleading and false because it shows the use of a razor without the use of the lather/foam and which lather/foam is advised for use while using the razor of the plaintiff or any other razor for that matter.
(ii) In this regard, I may note that no injunction on this aspect can be granted for the reason that it is conceded on behalf of the plaintiff that in its instructions given in the cover of the razor, use of the foam is only said to be a better alternative while using the razor and it is not that the use of the foam is said to be mandatory. Counsel for the defendant has also shown to the Court another video advertisement released by the plaintiff itself wherein razor is used without the use of the foam, but, I need not examine this aspect at this stage because once it is not mandatory to use the foam as per the instructions on the plaintiff's products/razors, plaintiff thus does not have a case at this stage to contend that the defendant must show the use of the razor in the impugned advertisement on showing application of lather/foam. Plaintiff therefore is not entitled to ad interim relief in this regard.
9. (i) The next issue is as to whether the defendant can contend as per the impugned advertisement that using of hair removal cream of the defendant causes two times smoothening of skin than as compared to hair removal by razors.
(ii) As per the ratio of the judgment in the case of Dabur India Ltd. (supra) it is seen that mis-representation is not permitted. Counsel for the defendant has sought to place reliance upon the report of the U.K. Agency, Global Depilatories R& D Laboratory, Hull, U.K and which report gives a conclusion that the 'Veet' hair removal cream of the defendant causes smoothening of skin up to twice as long as shaving and the defendant's representation is justified, but in my opinion, this report having been commissioned at the instance of the defendant and being not a report of a neutral third party which the Court should accept at this stage, hence the defendant cannot at this stage claim on the basis of this report that defendant's cream for hair removal is twice as better as compared to razors. During the further course of the present proceedings, an independent agency would be appointed by this Court for the purpose of giving a report, and only then can the Court come to a conclusion as to whether the defendant is justified in contending that the hair removal cream is twice as good as compared to hair removal by a razor. Also, counsel for the plaintiff is justified in arguing that the small sample size of just 30 persons is not such a size which this Court should naturally accept to cause deemed correctness of the report dated 11.9.2015 of the U.K. Agency, Global Depilatories R& D Laboratory, Hull, U.K. Therefore, the defendant is restrained from claiming in its impugned advertisement that the hair removal by using defendant's cream is twice as good as when compared to hair removal by a razor.
10. (i) That takes us to the issue as to whether the plaintiff is justified in claiming that in the advertisement by showing differences in the colour of the skin of dark when shown with the use of razor and fair when used with cream, hence it is to be implied that using of a razor leads to dark and uneven skin whereas use of hair removing cream leads to fairer skin and which is a misrepresentation and a false statement in the impugned advertisement.
(ii) This aspect pleaded by the plaintiff however in my opinion does not necessarily emerge on account of fleeting glimpses of a dark and a fair skin in the impugned advertisement with the fact that showing of hair removal by a razor on a dark skin does not necessarily and in all cases lead to a necessary conclusion that what is intended to be shown by the advertisement is that the use of a razor causes dark and uneven skin. This prayer for injunction by the plaintiff is therefore rejected.
11. (i) The next issue is as to whether the plaintiff can claim an injunction against the defendant that defendant in the impugned advertisement is showing that use of a razor can leave stubble.
(ii) In this regard, counsel for the plaintiff places reliance upon the report of M/s. Nielsen dated 24.12.2014 showing that use of the plaintiff's razor leads to smooth arms and legs i.e no stubble is left. It is seen that this report of M/s. Nielsen is the report of an agency commissioned at the instance of the plaintiff and therefore it cannot be said to be a report of a third party neutral agency. Reliance placed by the plaintiff on other reports does not help the plaintiff because those reports only state that use of the razor does not necessarily lead to faster or thicker hair growth after shaving. As also stated immediately hereinafter that there are various pros and cons of both the products of the parties and that use of the products may or may not leave stubble depending on various aspects and persons as detailed below. Plaintiff therefore cannot be granted injunction that defendant be restrained from claiming in its impugned advertisement that use of a razor leaves a stubble.
12. I may note that both the parties to the suit are rivals to each other. Products in question are different alternatives for hair removals. It goes without saying that unless there are exhaustive tests and reports of various neutral laboratories it cannot be confidently said today one way or the other as to whether or not the use of razor leaves a stubble or not that a hair removal cream is twice as good as a razor. There are many ifs and buts and variations whether of use of a razor or a hair removing cream, inasmuch as, one method may be suited to one set of individuals/ladies whereas another method may be suited to another set of individuals/ladies. Also, a lot depends upon how a razor or a hair removing cream is used including the type of skin of a particular lady, the type of hair of a lady i.e hard or soft or the amount thereof or the positioning of the hair on the body and issues of any individual specific allergies etc etc. Possibly therefore both the parties to the present suit are saying something which may or may not turn up to be ultimately correct, or may or may not to be false, and the statements may or may not be only partially true/partially false i.e a statement on any of the aforesaid issues which are called for decision may not be absolute but would be conditional on many factors and hence what are the exact conditions to be laid down for airing of an advertisement or non-airing of the same or in what manner the same is to be done whether it amounts to falsehood or disparagement are aspects which will be decided finally at the stage of hearing of the injunction application. For the present, the limited interim orders which are issued in favour of the plaintiff while declining other reliefs, and as an interim measure, will sufficiently protect the rights of the parties to the present suit inasmuch as there cannot be a perfect solution at this stage of the matter till completion of pleadings as also having reports of neutral and independent laboratories/agencies on various aspects of the matter qua the products of the plaintiff and the defendant.
13. Let the defendant file its written statement within four weeks from today. Plaintiff will file replication within four weeks thereafter. Parties will file documents in their power and possession within six weeks and admission/denial of these documents be done by filing an affidavit attaching thereto an index of documents of other side containing an additional column of endorsement of admission/denial.
14. List before the Joint Registrar for marking of exhibits to the documents on 30th August, 2016.
15. List before the Court for framing of issues and disposal of pending applications on 26th September, 2016.
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