( Hindustan Unilever Limited Vs. Reckitt Benckiser India Ltd\205) AAM 535 Vs

User Manual: AAM 535

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IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR PERMANENT INJUCTION

Reserved on: 09.12.2013

Pronounced on:31.01.2014

RFA (OS) 50/2008, C.M. APPL. 17116/2008

HINDUSTAN UNILEVER LIMITED ..... Appellant

Through: Sh. Sandeep Sethi, Sr. Advocate with Sh. Aditya Narayan, Sh.

Sameer Parekh, Sh. Kumar Shashank and Sh. Nitin Thukral, Advocates.

versus

RECKITT BENCKISER INDIA LIMITED .... Respondents

Through: Sh. C.M. Lall with Ms. Ekta Sarin, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE R.V. EASWAR

MR. JUSTICE S. RAVINDRA BHAT

1. This is a defendant’s appeal directed against a decree for permanent

injunction issued by the learned Single Judge in a claim alleging that the

defendant/appellant’s advertisement had disparaged the plaintiff’s goods.

The impugned judgment also directed payment of punitive damages to the

extent of Rs. 5 lakhs to the plaintiff. The parties will be referred to by their

original description in the suit for the sake of convenience.

2. The plaintiff (hereafter “Reckitt”) sought to restrain the defendant

Hindustan Lever Ltd. (hereafter “HUL”) by permanent injunction from

telecasting the impugned advertisement or otherwise disparaging Reckitt’s

goodwill and reputation and its product sold under the trade mark DETTOL,

in any other advertisements and in all media, from using the depiction of

Reckitt’s soap or any other soap deceptively similar to that of Reckitt’s in

its advertisement or in any other manner disparaging the goodwill and

reputation of Reckitt and its product sold under the trade mark DETTOL,

and finally, from using any other indicia whatsoever to associate with/depict

Reckitt or its products in its advertisements issued in any and all media

whatsoever including the electronic media. Reckitt also sought damages to

the tune of Rs.20,00,050/- towards disparagement, denigration and

tarnishment of its goodwill and reputation by the impugned advertisement. A

claim for exemplary damages too was made in the suit.

3. Reckitt is involved in the manufacture of the famous antiseptic

disinfectant under the trade mark DETTOL for over 70 years. It was averred

that the mark DETTOL is synonymous with good hygiene and, today, it is a

household name and is the most widely used antiseptic disinfectant in the

country. The plaint also mentioned the history of DETTOL dating back to

1929 when the DETTOL antiseptic liquid was developed. As an antiseptic

germ disinfectant, it was argued, DETTOL had an unparalleled reputation in

the medical profession and that it continuously evolved to meet modern day

demands, and now incorporates a range of innovative antiseptic, disinfectant

and cleaning products ranging from antiseptic liquid, hand wash and the

DETTOL toilet soap which has been manufactured and sold by Reckitt

continuously since 1981. Reckitt relied on the new modern, distinctive and

unique shape of the DETTOL toilet soap, which was subjected to intentional

and deliberate disparagement by the defendant is identified by the members

of the trade and public by its colour. Reckitt stated that on the front of the

soap the trade mark “DETTOL” and the sword device is clearly visible.

Reckitt contended that consumer-recognition of its products is by the colour

and distinctive shape of the soap, and also through its distinctive green

coloured packaging. In 1981, the DETTOL soap was launched as a

rectangular shaped, orange coloured bar without any curves. Reckitt adopted

the present shape with the curves instead of edges in May, 2006. It was

argued that this new improved soap with curvature in the middle and curved

edges helps consumers to easily identify and distinguish the product from

others. Unlike other orange coloured soaps in the market, Reckitt’s product

is the only one with such distinctive shape. Three variants of the new soap

are available in the market, i.e. DETTOL Original; DETTOL Skincare (a

white soap) and DETTOL Cool (a blue soap). Of the three variants, the

DETTOL Original bar is an orange coloured and is the most popular.

According to the plaint, the sale of DETTOL Original constitutes 80% of the

total DETTOL soap sales.

4. Reckitt argued that the soap packaging has always been of a distinctive

green and white colour combination and such packaging is synonymous with

Reckitt’s famous DETTOL brand. In this line of argument, Reckitt argues

that the purchasing public perceives the orange coloured bar with its

distinctive shape and the distinctive green and white packaging to be

synonymous with the DETTOL Original soap. Reckitt claims that it

continuously and uninterruptedly marketed its DETTOL products with such

distinctive green and white colour combination packaging, including the

sword device in India since the year 1933. It claims to have announced in a

press release that it was contemplating introducing new variants of its

flagship brand DETTOL and it launched a new ad campaign – “Surakshit

Parivar” – to create awareness of the practice of hygiene at the family level.

Reckitt allocated a budget of about Rs.5 crores for the programme.

5. Reckitt became aware that the HUL introduced an advertisement on

television, which intentionally and deliberately disparages Reckitt’s soap

under the trade mark DETTOL and the unique and distinctive packaging.

The offending advertisement concerns the defendant’s LIFEBUOY soap.

Reckitt alleges that a bare viewing of the said advertisement would convince

this Court of the defendant’s malicious intent to increase the market share of

its LIFEBUOY soap by tarnishing the goodwill and reputation of Reckitt’s

soap i.e. DETTOL Original Soap. The disparaged soap, alleged Reckitt, is

its product. The contours and the curvature in the middle on the toilet soap in

the defendant’s advertisement are identical to the contours of Reckitt’s

DETTOL Original soap. The only difference is that Reckitt’s product and

the logo are not shown in the advertisement. The colour of the soap in the

defendant’s advertisement is virtually identical to that of the DETTOL

Original soap of Reckitt. The packaging of the toilet soap used in the

defendant’s advertisement is likewise similar to that of Reckitt’s soap’s

packaging. The defendant’s advertisement is designed to give an impression

to the buyers that the offending soap is Reckitt’s DETTOL Original soap.

The learned Single Judge describes the disparagement alleged, in the

following manner:

(i) The advertisement begins with a couple returning home after getting wet

in the rain. The wife then proceeds to take a new soap to go and have a bath.

The green coloured packaging, the orange coloured soap and the distinctive

DETTOL shape is clearly visible in the advertisement. The intention of this

scene is to convey to the audience that the offending soap pertains to an

established soap i.e., DETTOL Original soap presently being used by the

family.

(ii) The next frame shows the husband, a medical doctor, and the children

telling the lady of the house not to use the soap and the vocals state: “Oh

God bachaa lena naadaan ko aql dena....Hum sab ko bachaa lena”.

It is alleged that the use of a doctor protagonist is once again relevant as

DETTOL is an established brand in the medical profession.

(iii) The next frame shows the doctor husband explaining to the wife the

reason as to why she should not use the offending soap and, instead, should

use the Defendant’s LIFEBUOY soap by stating that normal antiseptic soaps

make the skin dry leading to cracks in the skin thereby permitting the germs

to enter the cracks in the skin while the defendant’s soap fights germs and

keeps the skin protected. According to the plaintiff this scene is clearly

intended to give out the message that the Plaintiff’s soap is not effective

against fighting germs whereas the Defendant’s soap is effective against

fighting germs. The words used in the advertisement are:- “Dua ki zarurat

padegi is dawa ke saath. Aam antiseptic sabun twacha ko rukha kar dete hai

jis se dararon mein kitanu ghus jaate hain...isi liye naya Lifebuoy skin guard

jo kare kitanuon per waar aur banaye suraksha ki bhi deevar.”

According to the plaintiff it is relevant to mention that as DETTOL is used

in respect of an extremely well known brand of antiseptic liquid, the use of

the term “dawa” (medicine) is clearly intended to draw the attention of the

viewer to the Plaintiff’s product.

(iv) In the next frame the lady is then shown to go and have a bath with the

Defendant’s soap and come out very satisfied with the same. According to

the plaintiff, this falsely indicates that the defendant’s soap is effective

against fighting germs while the plaintiff’s DETTOL soap is not.”

6. Reckitt alleged that the defendant’s advertisement is a slanderous attempt

to increase the market share of its LIFEBUOY soap by defaming and

disparaging the worth and reputation of Reckitt’s product. It was also

alleged that the said advertisement outreaches the limits of allowed

competitive advertising and blatantly denigrates the reputation and goodwill

of Reckitt’s well established and leading brand. It not only showed that

HUL’s product was good (i.e. puffery) but also very clearly depicts that

Reckitt’s product is completely worthless. Further, the use of the soap bar

including its unique curved shape and the distinctive packaging which is

virtually identical to that of Reckitt’s by HUL resulted in dilution and

debasement of the hard earned reputation and goodwill of Reckitt’s world-

known and widely used products. HUL’s conduct in filing a caveat dated

16.7.2007 was alleged to indicate its mala fide intentions as against Reckitt’s

product as HUL was aware that the soap depicted in its advertisement was

Reckitt’s soap and also knew that Reckitt would initiate action against it.

7. The defendant, in its written statement, denied that Reckitt had any

cause of action or that the action could be adjudicated in the civil courts,

since the allegations pertained to unfair competition and were properly the

subject matter of proceedings under the Monopolies and Restrictive Trade

Practices Act, 1969 (hereafter referred to as the ‘MRTP Act’) and the

Consumer Protection Act, 1986. The advertisement, in question, stated the

defendant referred to ordinary antiseptic soaps; Reckitt’s soap is neither an

antiseptic soap, nor an ordinary (unbranded) soap. It relied on the judgment

in Reckitt Benckiser (India) Limited v. Naga Limited & Others: 2003 (26)

PTC 535 (Del.), where it was allegedly held that Reckitt’s soap is not an

antiseptic soap. The defendant alleged that Reckitt does not have a

monopoly over the colour or over the shape of the soap and cannot claim

exclusivity over the colour, shape or packaging of the soap. The defendant

further stated that the shape, contours and curvatures of Reckitt’s orange

coloured soap DETTOL was not registered under the Design’s Act to give it

an exclusive right to use it.

8. The defendant stated that it marketed several toilet soaps including one

under the brand name “LIFEBUOY” through an extensive marketing

network across the country and that it enjoys considerable goodwill and

reputation among the Indian consumers. It is stated that LIFEBUOY is a

global brand which was launched in the United Kingdom in 1894 as a

product for personal hygiene and that it is India’s oldest toilet soap brand

and has been synonymous with health and hygiene in India since 1895. The

defendant alleged that the said product sold under the brand name

LIFEBUOY for over 110 years has acquired substantial goodwill in the

market and has become a household name. The defendant denied that its

advertisement disparaged Reckitt’s product and said that it aims at educating

the consumers and public at large to understand the difference between toilet

soaps containing glycerine, which have a moisturizing effect on the skin and

give a long term benefit on the one hand and ordinary antiseptic soaps in the

market on the other which may not contain glycerin and do not give to the

consumers the benefit of moisturizing the skin and removing the possibility

of formation of cracks which is a breeding ground for germs. It is further

stated that the defendant’s claims about its soap being better than any other

ordinary antiseptic soap is based on the laboratory test conducted by it.

9. The defendant urged that its TV advertisement had to be seen in totality

and not in an isolated and unnatural manner, frame by frame. The defendant

contended that the intent, manner, story line and message of its

advertisement are that its soap is better than ordinary antiseptic soaps

because it is rich in glycerin and vitamin E. Further, the defendant stated that

Reckitt’s soap, a Rs.200 crore brand, cannot be termed as an ordinary soap

and in any event, is not an antiseptic soap. In the entire advertisement, there

is no reference whatsoever to the trademark DETTOL or the sword device

and, therefore, there is no reference to Reckitt’s product, argues the

defendant.

10. Denying that the impugned advertisement described Reckitt’s soap, the

defendant outlined points of distinction. Again, the narration of the Single

Judge in this regard is set out below:

“(a) The colour of the soap shown in defendant’s advertisement is yellow in

comparison to the plaintiff’s orange soap; (b) The soap shown in defendant’s

advertisement is taken out of a pale green single-colour packaging, whereas

the plaintiff’s DETTOL TOTAL is sold in green and white and its other

variants are sold in blue and white packaging; (c) There are many other

soaps in the market with curvatures and contours similar to the plaintiff’s

soap. (d) The brand name DETTOL and/or the Sword device are embossed

on all the plaintiff’s products but the same are admittedly missing from the

soap shown in the defendant’s advertisement.”

11. Without prejudice to its pleas that the impugned advertisement did not

describe or refer to Reckitt’s product, the defendant stated, arguendo, if the

soap shown in the defendant’s advertisement was that of Reckitt,

nevertheless a tradesman is entitled to declare his goods to be the best in the

world, irrespective of the truth of that statement. It can be said that a

tradesman’s goods are better than his competitors; though such statement

may be untrue. To say that one’s goods are the best in the world or are better

than that of the competitors one can even spell out the advantages of his

goods over that of others. Reckitt itself has been showing that its soap is

better than that of the defendant’s in its various advertisements, both in India

and abroad.

12. The following issues were framed in the suit, for adjudication:

“1. Whether the depiction in the advertisement of the defendant of soap

refers to the Dettol soap of the plaintiff? (OPP)

2. Whether the advertisement of the defendant disparages or denigrates the

soap of the plaintiff? (OPP)

3. Whether the impugned advertisement seeks only to promote the

superiority of the defendant LIFEBUOY soap over an ordinary antiseptic

soap? (OPD)

4. Whether the plaintiff is guilty of suppression of material facts? If so, its

effect? (OPD)

5. Whether the impugned advertisement constitutes an attack on the

goodwill and reputation of the Dettol brand of the plaintiff? (OPP)

6. Whether the present suit is barred on account of the provisions of the

MRTP Act, 1969 and/or the Consumer Protection Act, 1986? (OPD)

7. Whether the plaintiff is entitled to any damages for disparagement,

denigration, loss of goodwill and reputation? If so, the extent thereof? (OPP)

8. Whether the plaintiff is entitled to punitive and exemplary damages? If so,

the extent thereof ? (OPP)

9. Relief.”

13. Reckitt relied on documents, Ext. PW1/1 to PW1/19 and PW1/DX1.

HUL relied on Ext. DW1/1 to DW1/18 and DW2/1 to DW2/9. The video

clip of the advertisement was filed in a compact disc (Ext. PW1/2). Reckitt

produced one witness (PW-1) – Mr. Mohit Marwah, its Brand Manager. The

defendant relied on testimonies of three witnesses - (1) Mr. Anuj Kumar

Rustagi, Global Marketing Manager, Lifebuoy Soaps (DW1); (2) Dr. Rajan

Raghavachari, Regional Senior Product Development Manager of the

defendant (DW2) and (3) Dr Hemangi Jerajani, Dermatologist (DW3).

Affidavits of the witnesses in the first instance formed their examination in

chief and they were subjected to cross-examination by the opposing counsel.

14. The Court had the benefit of considering the suit records, including the

video clip of the offending advertisement (Ext. PW1/2). The observations of

the Single Judge describing the story board are extracted below:

“1. A man and his wife returning home on a rainy day. The wife exclaims

“Kya baarish hai” (what rain). The man places his white coat and

stethoscope which indicates that he is a doctor. He goes and sits with his

children (boy and girl) on the sofa. The children are watching a cricket

match on television.

2. The next frames show that his wife plans to take a bath saying “chalo

main naha leti hoon” (come, let me take a bath). She is then shown taking

out an orange bar of soap from a green wrapper.

3. On seeing the orange soap in his wife’s hand, the husband has a shocked

look on his face and says “Oh God, bachaa lena” (Oh God, Save her).

4. The next frames show the husband and children pointing at the wife and

singing a song in chorus “Naadaan ko aql dena, ham sab ko bachaa lena......”

( show reason to the naive, save us all .....).

5. The wife has a surprised look on her face and asks “Kya kar rahe ho”

(what are you doing?).

6. The next frames show the husband displaying the orange soap in his

raised right hand and looking at his wife and saying “Dua ki zarurat padegi

iss dawaa ke saath” (prayers would be required with this medicine).

7. This is followed by a cut to a bathing shot where a woman is shown using

the said orange bar of soap. In this cut, there is a male voice-over stating:

“Aam antiseptic sabun twacha ko rukha kar dete hain..”

(Ordinary antiseptic soaps make the skin dry..).

8. Then there is a close-up of the upper-arm under a magnifying glass which

reveals skin with cracks and green germs lodged in the cracks. At this

juncture the male voice-over states: “..Jis se dararon me kitanu ghus jate

hain” (.. as a result of which, germs get into the cracks). Simultaneously, the

following words appear on the bottom left of the screen:-

“Aam antiseptic sabun” (ordinary antiseptic soap)

9. Then there is a cut to a water shot, where we see a bar of the red

LIFEBUOY soap emerging out of the water. On the top left hand corner of

the screen, the words “Glycerine” and “vitamin E” appear and the male

voice-over states “Isi liye naya Lifebuoy Skin Guard” (that is why, new

Lifebuoy Skin Guard).

10. Then there is a cut again showing a part of the arm under a magnifying

glass and the green germs are seen getting washed away. The male voice-

over states that :

“.. jo kare kitanuon pe waar” (.. which attacks the germs).

11. The next frames show a layer of glycerine flowing from left to right

under the magnifying glass and the voice-over states: “.. aur banaye suraksha

ki bhi deevar” (..and also builds a protective wall).

12. The clip then proceeds to a new cut showing the wife, apparently after

having had a bath, coming into the living room where the husband and

children are watching the cricket match on television. On seeing her they,

once again break into the same song “Bachaa lena” (Save us).

13. The wife stops them and, referring to the cricket match being shown on

TV, says “Aa hah, doctor saheb dua inke liye bachaa lena” (Aa hah, doctor

saheb, save the prayers for them).

14. The next frames show that the wife joins her husband and children at the

sofa and says:

“Hame koi dar nahin” (we have no fear).

15. The next shot shows the LIFEBUOY Skinguard bar of soap and its

package and the LIFEBUOY logo zooms onto the package. At this juncture

the male voice-over announces: “Naya Lifebuoy Skin Guard” (new Lifebuoy

Skin Guard).

16. This is followed by a cut to the Hindustan Lever Limited logo and the

advertisement ends there.”

15. After making a detailed frame by frame description of the offending

advertisement, the learned Single Judge held that:

“The new shape of the DETTOL Original toilet soap with the curved edges

and the curvature in the middle is clearly displayed on the product

packaging, which is further indicative of the importance given to the shape

by the plaintiff in its marketing of the product. The packaging (Ext. PW1/8)

also establishes the fact that although white is also used, green is the pre-

dominant colour. Although, the brand name, logo or the sword device does

not appear in the orange bar of soap shown in the advertisement (Ext.

PW1/2), there can be no misgiving that the bar of soap which has been

shown in the said advertisement is of a colour similar to that of the

plaintiff’s DETTOL soap. The contours, curvature as well as the overall

shape of the orange bar of soap in the advertisement itself, are virtually the

same as that of the contours, curvature and overall shape of the plaintiff?s

DETTOL Original soap. Moreover, the clear impression given in the

advertisement is that the said orange bar of soap has been taken out from a

green wrapper/ packaging. It must also be noted that the design of the

plaintiff?s soap has been registered by the plaintiff as indicated by Ext.

PW1/DX-1. While it is true that there may be other orange coloured soaps

and other soaps sold in the pre-dominantly green packaging and other soaps

which have an oval shape, it is also true that it is only the plaintiff’s soap

which has a combination of all the three elements, i.e., orange colour, curved

oval shape and pre-dominantly green packaging. Apart from this, it is only

the plaintiff’s soap which has contours in the manner indicated in the bar of

soap in the said advertisement. No evidence has been produced by the

defendant to show that there is any ordinary antiseptic soap with the same

combination of the aforesaid elements of colour, shape, design and

packaging. I have absolutely no doubt that the orange bar of soap shown in

the advertisement refers to the plaintiff’s DETTOL Original soap.”

16. The learned Single Judge conceded that though Reckitt’s soap was not

an antiseptic soap, and therefore, facially the defendant was not referring to

DETTOL, yet the long association of Reckitt with antiseptic products and

medications in the general public’s mind led to the belief that the offending

soap was that of Reckitt, and an antiseptic one at that. The Single Judge then

rejected the defendant’s argument that there had to be proof of

disparagement through oral testimony of witnesses:

“It has been contended on behalf of the defendant that the plaintiff has not

produced any evidence of consumers to indicate that the orange bar of soap

in the said advertisement appears to be the plaintiff’s DETTOL Original

soap. In response the learned counsel for the plaintiff submitted that

producing such evidence would be counter-productive and is not necessary.

He submitted that the plaintiff could produce witnesses stating that the

orange bar of soap shown in the advertisement had reference to the

plaintiff’s DETTOL Original soap. Similarly, the defendant could also

produce witnesses to state the contrary. Ultimately, it would be for the court

to make a judgment from the perspective of an average person with

imperfect recollection, a test which has been well established, particularly in

passing off cases. Though slander of goods and disparaging advertisements

stand on a slightly different footing to passing off cases, I find myself to be

in agreement with the submissions made by the learned counsel for the

plaintiff. Ultimately it is a question of perception and the perception has to

be determined from the stand point of an average person man with imperfect

recollection but, with a corollary, which shall stated be shortly. One could

normally expect that there would be a difference in perception between two

distinct classes of persons -- (1) Persons who are using DETTOL Original

soap and (2) persons who do not use that soap. A person belonging to the

latter category may not be aware of the orange coloured bar of soap of the

plaintiff with its distinctive shape, curvature and contours. He may also not

be aware of the packaging employed by the plaintiff. Therefore, such a

person may not link the bar of soap shown in the advertisement with the

plaintiff’s product when he sees the advertisement or when he comes upon

the plaintiff?s product in a shop. Such a person, in all likelihood, would

perceive the orange bar of soap shown in the advertisement as being some

unbranded bar of soap. On the other hand, a person belonging to the former

category, being a user of the plaintiff’s DETTOL Original soap, would

immediately recognise the bar of soap shown in the advertisement as

referring to the plaintiff’s DETTOL Original soap. This is because, such a

person is familiar with the plaintiff’s product. He is “intimately” aware of

the look and feel of the soap because he uses it everyday.”

After the above analysis, the impugned judgement proceeded to hold as

follows:

“The difference in approach in a passing off action and one for

disparagement must also be highlighted. In a case of passing off, the

question invariably is whether the trade mark or trade dress employed by A

for his product is so deceptively similar to the established mark or trade

dress of B?s product that A?s product could be confused by or passed off to

consumers as B?s product? Here the comparison is of rival products having

a similar trade mark, get-up or trade dress. Familiarity with the established

mark, trade dress or get-up is presumed. Because, it is this familiarity that

the person intending to pass off his goods as those of the famous or more

popular, exploits. In the case of disparagement, the one who disparages

another?s product, does not seek to make his product similar to the

disparaged product, but to distinguish it from the disparaged product. The

object of disparagement is to make the disparaged product appear to be as

near or similar to the competitor?s product. The comparisons, therefore, in

cases of passing off and in cases of disparagement are different.

Consequently, the comparison must be from the perspective of an average

person with imperfect recollection but, that person must be picked from the

category of users of the product allegedly sought to be disparaged or

slandered.

27. Considered from the standpoint of an average man with imperfect

recollection who is also a user of the DETTOL Original soap, the

inescapable conclusion would be that the soap shown in the advertisement

refers to the plaintiff’s DETTOL Original soap. Consequently Issue No 1 is

decided in favour of the plaintiff and against the defendant.”

On the second issue, i.e. whether the impugned advertisement

promoted the defendant’s product, the Court held that the advertisement

could be divided into two parts: one of those disparaged Reckitt’s product

and the other sought to promote the defendant’s product. It was held that

though an attempt at promoting the defendant’s product – which was

permissible – was discernible, yet the net result of the advertisement was to

disparage Reckitt’s DETTOL Original. The Court held that the materials

relied on by Reckitt were insufficient to entitle it to compensatory or general

damages. However, Hindustan Lever’s conduct was held to be such as to

entitle Reckitt to punitive damages, which the learned Single Judge

quantified at Rs. 5,00,000/-.

Appellant’s contentions

17. The appellant/HUL contends that Reckitt could not have maintained

the suit since it was guilty of unfair conduct. It was submitted in this regard

that though Reckitt concedes that its product is not an antiseptic soap but at

the same time it unfairly maintains that the impugned advertisement

disparages and denigrates its products. It is submitted in this regard that the

advertisement merely cautions the viewers and the members of the public

that antiseptic soap tends to injure the skin. It is not Reckitt’s contention that

its soap is an antiseptic soap. This important aspect escaped the notice of the

learned Single Judge. The suit, therefore, was not maintainable at all.

Learned counsel in this context relied upon the observations of the learned

Single Judge in paragraph 23 of the impugned judgment to the effect that

Reckitt’s soap – Dettol Original – is not an antiseptic soap whereas the soap

in the advertisement is referred to as an “ordinary antiseptic soap”. However,

it was argued that nevertheless the impugned judgment erroneously held that

the public at large carried an impression that all Dettol products are

antiseptic. Furthermore, submitted learned counsel, Reckitt even had

claimed that its product was recommended by the Indian Medical

Association (IMA) – advertised prominently on the cover too.

18. Elaborating on this aspect, learned counsel submitted that Reckitt did

not in fact have a cause of action at all because the Dettol Original is a toilet

soap, concededly bearing BIS specification IS:2888; 2004. However, the

comparison made in the advertisement is against an ordinary antiseptic soap,

an entirely different article or product falling within the BIS specification

IS:11479; 1985. Learned counsel relied upon the ruling of this Court in

Reckitt Benckiser India Limited v. Naga Ltd., 104 (2003) DLT 490. It was

argued next that the learned Single Judge did not apply the proper test

applicable in disparagement of goods/products disparagement cases.

Learned counsel here submitted that the appropriate test applicable is

whether a reasonable man with average intelligence can identify Reckitt’s

products in the advertisement. It was emphasized that the overall or the

totality of impression test in the same medium (of communication) has to be

applied in this context. Learned counsel faulted the learned Single Judge for

applying the test of confusion, properly applicable in passing-off actions.

Reliance was placed upon the meaning of the expression “disparagement”

given in the New International Webster’s Comprehensive Dictionary, i.e. “to

speak of slightingly or undervalue or bring discredit or dishonor upon …” It

was submitted that in considering whether a statement is denigrating or

otherwise, the Court should give the statement or material in question its

natural and ordinary meaning. In this context, learned counsel relied upon

the decision reported as Gillic v. British Broadcasting Corporation 1996

EMLR and the discussion in Clerk and Lindsells Treatise or Torts (20th

Edition) Common Law Library, published by Sweet & Maxwell, it was

emphasized that the question whether the statement is defamatory or

disparaging depends on the probability of the case and the natural tendency

of the publication, having regard to the surrounding circumstances and not

the intention of the defendant. Reliance was placed upon the judgment

reported as Keays v. Murdock Magazines, 1991 (1) WLR 1184. It was

submitted further that the learned Single Judge fell into error in holding that

the target group of persons to whom the impugned advertisement was made,

was the one who used the product as they would know how it looks. It was

stressed that this conclusion was illogical because then it would not be a case

of imperfect recollection. Besides, argued counsel, this flies on the face of

the well-accepted proposition that words are not defamatory if they may

damage the man in the eyes of a section of community unless they amount to

disparagement in the eyes of the right-thinking people of the entire general

public. Counsel also took exception to what he termed as a minute and

elaborate analysis of the impugned advertisement by the learned Single

Judge. He argued that the Court should have considered the overall effect,

rather than a bits and pieces approach in detailed scrutiny of the various

elements of the advertisement. Counsel relied on Skuse v. Grenada [1993]

EWCA Civ 34, in support of this argument. It was next argued that the

learned Single Judge could not have found, upon the fair assessment of the

materials on record, that there was disparagement of Reckitt’s Dettol

Original soap.

19. Learned Senior counsel, Shri Sandeep Sethi, underlined that to arrive

at such a conclusion it was essential for Reckitt to have led evidence by way

of oral testimony of some consumers who saw the advertisement of Dettol

ordinary and found that its effect was to run-down the reputation and

goodwill or cause injury in their eyes. The absence of this material,

submitted counsel, undermined the findings of the learned Single Judge.

Reliance was placed upon the decision Colgate Palmolive v. Hindustan

Lever, 1999 (7) SCC 1. Reliance was also placed upon Reckitt and Coleman

of India Ltd. v. Jyothi Laboratories, 1999 (2) Cal. LT 230. Learned counsel

argued that none of the witnesses produced by Reckitt could be

characterized as genuine members of the public since they were all either its

officials or associated with it.

20. HUL further argued, through senior counsel, Sh. Sandeep Sethi, that

the impugned advertisement has not been considered in its totality by the

learned Single Judge, but considered it frame-by-frame and in bits and

pieces to hold that it disparaged Reckitt’s Dettol Original soap. Learned

counsel relied upon the decision of the Supreme Court in Lakhanpal v.

MRTP Commission, AIR 1989 SC 1692. It was next urged that since the

impugned findings do not apply the proper test of overall effect but was

based upon an intense frame-by-frame analysis of the advertisement,

highlighting the soap, the packaging, the colours and the shape, the

conclusions were distorted. It was also emphasized that the learned Single

Judge fell into error in holding that the impugned advertisement contains a

combination of three elements, i.e. orange colour, curved shape and

prominently green packaging. Learned counsel relied upon the decision

reported as Colgate Palmolive v. Mr. Patel 2005 (31) PTC 583 (Del) to say

that no one can claim monopoly over colours and consequently Reckitt

could neither claim monopoly over the orange colour nor the overall green

packaging which were common colours. However, the comparison made in

the advertisement was with ordinary antiseptic soap. Learned counsel further

stressed that intense frame-by-frame scrutiny has prejudiced the mind of the

learned Single Judge since it completely overshadowed the overall effect.

The time given for depicting the shape (with colour), packaging of HUL’s

soap and the so-called disparaging comments having regard to the overall

length of the advertisement, was miniscule and disproportionately low – less

than five per-cent. This could not have resulted in disparagement at all – a

very important aspect overlooked by the learned Single Judge. Learned

counsel also submitted that in this intensive analysis, the impugned

judgment overlooked a very significant aspect which was that Reckitt’s

packaging of its Dettol soap, claimed in the plaint was the white and green

colour combination. The impugned judgment, on the other hand, erroneously

held that the green packaging depicted in the advertisement was a pointed

reference to that of Reckitt’s product. In other words, submitted the counsel,

Reckitt’s case was that its white and green colour combined packaging had

attained distinctiveness whereas the impugned advertisement was green and

no evidence was led by Reckitt to establish that it packaged its products in

that manner.

21. Sh. Sandeep Sethi next argued that the learned Single Judge failed to

consider the evidence of HUL and in particular, the affidavit evidence of

DW-1 along with the photographs, DW-1/1, DW-1/2 and DW-1/3. These

documents were photographs of various branded and unbranded orange

coloured soaps (DW-1/1); of various orange coloured antiseptic soaps (DW-

1/2) and green and while packaging (DW-1/3). It was argued in this context

that orange is a common product colour in the market in both branded and

unbranded soaps and that there are several orange coloured antiseptic soaps

with green and white packaging.

22. Learned counsel also submitted that Reckitt could have led

appropriate survey evidence that consumers involved in all orange coloured

soaps in a curvature and green packaging associated them with the Dettol

Original toilet soap. There was complete lack of such evidence. In these

circumstances, the appropriate course for the learned Single Judge was to

draw an adverse inference against Reckitt and not to decide the case on the

basis that such evidence or the lack of it was of no consequence. This led to

failure of justice because the evidence led by the defendant, i.e. HUL was

not taken into consideration. Likewise, submitted learned counsel, the

finding that the customer associated the term “ordinary antiseptic soap”

referred to in the impugned advertisement with Reckitt’s product is based

upon an assumption and does not rest on any material or evidence.

23. Learned senior counsel next submitted that to succeed in its suit for

disparagement, not only did Reckitt have to prove that the impugned

statement was concerning his goods but also that it was false and malicious,

i.e. with intent to cause injury. Reliance was placed upon the decisions

reported as White v. Mellin, 1895 AC 154; Imperial Tobacco Company v.

Albert Bonnan, AIR 1928 Cal 1. It was submitted that the learned Single

Judge failed to consider the evidence led by HUL to establish that the

laboratory test reports produced as DW-2/1, DW-2/2, DW-2/3 and DW-2/7

substantiated the claim that ordinary antiseptic soaps were not of the same

standard as HUL’s “Skin Guard”. Thus, the truth of the statement that

Reckitt’s advertisement regarding its Skin Guard toilet soap which had

moisturizing content was more beneficial than antiseptic soaps which had

the tendency to cause injury to the skin. This error, in the submission of

HUL’s counsel, clearly goes to the root of the matter since Reckitt could not

have in these circumstances stated that the claims made in the advertisement

were false. Thus, the second element, i.e. the truth of the statement having

been proved was established by HUL, the suit had to necessarily fail.

24. Learned counsel faulted the impugned judgment in granting plaintiff’s

claim for punitive damages even after holding that no special damage had

been proved. Reliance was placed upon the decision of the Supreme Court

referred to as Organo Chemical Industries v. Union of India, 1979 (4) SCC

1. It was stated that this approves the grant of such punitive damages.

Learned counsel also relied upon the judgment of the Court of Appeals in

Broome v. Cassel and Co., 1972 AC 1027 to submit that grant of punitive or

special damages even while the Court is unable to grant any general or

compensatory damages, is without authority of law. Learned counsel further

relied upon the decision in Microsoft Corporation v. Deepak Rawal, 2007

(35) PTC 478 (Delhi) to say that the rationale of awarding punitive damages

is to deter the wrong-doer from indulging in unlawful activities which have a

criminal propensity. He submitted that the reliance on Times Corporation v.

Lokesh Srivastava, 2005 (30) PTC 3 (Del) by the learned Single Judge was

inappropriate. Learned counsel emphasized that the latter decision had

discredited the binding judgment of the Supreme Court in Organo Chemical

Industries (supra).

Contentions of Reckitt Reckitt Benckiser

25. It was argued on behalf of Reckitt Benckiser, the plaintiff, by Mr.

C.M. Lall, learned counsel that an overall reading of the rival pleadings,

particularly the allegations in paragraph 23 of the plaint and the

corresponding averments in the written statement clearly demonstrate that

the claim was in respect of reputation and goodwill of Reckitt soap under the

trademark Dettol with its new curved shape, orange colour, distinct green

and white packaging and the reputation it enjoyed. Learned counsel

emphasized that to establish this claim, adequate evidence in the form of

design registration of the soap, Ex. DW-1/DX-1 and the Design Act,

conferred exclusivity. However, PW-1, in the deposition clearly stated that

the soap, Ex.PW-1/8 and the wrapper served as a trademark and was

displayed in the product packaging and that no other soap was available in

that unique shape in India or elsewhere. Learned counsel underlined that

there was no cross-examination on this issue. Likewise, there was no cross-

examination about the sales figures at the time of its launch in May 2006, in

the form of statement, Ex.PW-1/10. Likewise, PW-1 had asserted that the

orange colour of the soap and the green coloured packaging were identifying

features for Reckitt’s Dettol toilet soap. On this too, there was no cross-

examination.

26. Learned counsel next submitted that in another suit filed by HUL, a

copy of which was produced as Ex. PW-1/16, an admission was made that

Dettol had launched a toilet soap. That suit claimed relief against the

advertisement which were produced in the present case, i.e. DW-1/11, DW-

1/12, DW-1/13 and DW-1/14. It was submitted that the orange coloured

Dettol soap with unique shape could be seen in the story board in that suit.

Learned counsel relied upon the examination-in-chief of DW-1 and the

evidence, DW-1/15, produced in the form of sales data collected by an

independent agency, IMRB to establish that sales figure of Dettol Original

undergo changes in summers and winters. Learned counsel emphasized that

the written statement admitted the extensive sales of Reckitt’s product, in

paragraph 9 and DW-1 had admitted to purchasing Dettol Original soap and

thereafter developing the offending advertisement. In this regard, learned

counsel relied upon paragraph 11. It was contended that the impugned

judgment has adopted the correct approach with respect to proof of

disparagement. Learned counsel submitted that the conclusion arrived at by

the learned Single Judge, i.e. that evidence of consumers would tend to

cancel out the effect of each other, was a common sense and a practical

method at resolving what was obviously to be decided by the Court.

27. On the question whether HUL’s advertisement disparages or

denigrates Reckitt’s soap, Shri Lal relies on an admission in the former’s

written statement. It reads as:

“23 … It is further submitted that the defendant advertisement is dissuading

the public from using the unbranded antiseptic soap” (emphasis supplied)

This averment, submits Reckitt, is relevant as it establishes that the attack is

on the rival product and not mere puffery of HLL’s product. Counsel

underlined that this constitutes an admission of malice and passes the test of

malice set out in Imperial Tobacco Co. (i.e. it is “done with the direct object

of injuring the other person’s business.”). Likewise, the averment in

paragraph 20 of the plaint is relied to say that it lists the denigration made

and includes the representation that use of DETTOL soap in fact invites

germs to the body which are then killed and washed away with the

LIFEBUOY soap of the defendant. Counsel highlights that in the story line

the husband (a doctor) and the children, the most influential people in the

life of a housewife, repeatedly mock at the mother for using DETTOL by

use of the term “bacha lena” (save) repeatedly. This clearly constitutes

denigration. This is a direct attack on Reckitt’s “surakshit parivar” (secure

family) advertisement campaign, which is alluded to in paragraph 14 of the

plaint. Counsel also relies on the following averments to say that denigration

and malice are specifically pleaded in the plaint, in particular:

“…..a bare viewing of the said advertisement will be sufficient to convince

this Hon’ble Court of the malicious intention of the Defendant to increase

the market share of its LIFEBUOY soap by tarnishing the goodwill and

reputation of the plaintiff’s popular product.” (paragraph 18)

“….the impugned advertisement is nothing but a slanderous attempt of the

defendant to increase market share of its LIFEBUOY soap by defaming and

disparaging the worth and reputation of the plaintiff’s product.” (paragraph

21).

It is argued that the impugned advertisement not only shows that the

defendant’s product is good but also very clearly depicts that Reckitt’s

product is completely worthless.

28. Mr. Lal contends that Reckitt has led positive evidence, Ex.PW-1/13

in the form of a test report of an independent agency to establish that

DETTOL soap is 10 times more efficacious at reducing bacterial and fungal

cell counts than LIFEBUOY. It is submitted that PW-1 was cross-examined

on this issue and that HUL’s representation that DETTOL causes germ

formation is therefore completely false. It is urged that HUL too admits that

DETTOL is more than 10 times more efficacious than its LIFEBUOY soap

with actives, and a reference is made to Ex. PW-1/17, where in a previous

judgment, a learned Single Judge of this court recorded that admission (by

HUL, plaintiff in that suit) in the following terms:

“The statement in the advertisement that DETTOL is 10 times more

efficacious is in comparison with those soaps which are without actives.

Therefore, this statement would not have any reference to the plaintiff’s

LIFEBUOY soaps and even otherwise the said statement is claimed to be

true by the defendant no.1 and the plaintiff could not dispute that if

DETTOL soap is to be compared with soaps without actives, then this

statement is factually correct.”

It is stated that HUL itself has led evidence to establish that Reckitt’s soap

and its soap are comparable in reducing bacterial count; Ex.DW-2/1 and

Ex.DW-2/3 are referred to for this purpose. These, submits Reckitt,

establish that Dettol Original (0.961%) has higher levels of Trichloro

Carbanilide (TCC), which is the ingredient that helps reduce bacterial count,

when compared to Lifebuoy Skin Guard (0.227%). That TCC is an anti-

microbial active is admitted on in Para (vii) of the written statement. It is

argued that the plaintiff, Reckitt, has discharged the onus that the depiction

of Dettol, as the standard of proof indicated in Reckitt & Coleman of India

Ltd. v. Jyothi Laboratories Ltd., Cal LT 1999 (2) HC 230, has thus been

discharged. Counsel additionally submits that Ex.DW-2/7 further

establishes that out of a sample of 31 people on whom tests were conducted

with the rival products, on four people Dettol Original caused less dryness

and irritation to the skin than Lifebuoy Skin Guard. On six people, the

irritation levels were the same. On 8 people, the irritation count was less

than three. Therefore, they did not get skin irritation from either product. On

12 people HUL’s product caused skin irritation of the level of four or above.

HUL’s own report, therefore, established the falsity of its claims made in the

advertisement.

29. It is next urged that HUL’s entire written statement is based upon

“laboratory test conducted” by it. (paragraph 6 of the written statement).

DW-1 has admitted that “prior to the launch of Lifebuoy Skin Guard soap”,

he procured the Dettol Original soap of Reckitt and only “thereafter”

developed the offending advertisement (paragraph 11). All tests conducted

by HUL are after the launch of the impugned advertisement. Reckitt’s test

report, that DETTOL is 10 times more efficacious was available with HUL.

This clearly established malice on its part, it is argued.

30. On the fourth issue, i.e. if Reckitt was guilty of suppress of material

facts, it is urged that Reckitt Benckiser (India) v. Naga Ltd. [104 (2003)

DLT 490] related to a different advertising campaign of Reckitt and against

a different defendant and was based on completely different facts and had no

relevance to the present proceedings. It is argued that Reckitt has always

been careful in ensuring that the distinction between its DETTOL liquid and

DETTOL toilet soap is maintained in the plaint and in the market place. The

description of DETTOL soap as a toilet soap can be seen in paragraphs 7, 8,

9, 19(i) and 19(iii) of the suit, and discuss how the DETTOL brand has been

extended from an antiseptic liquid to a toilet soap. However nowhere is a

claim made that DETTOL has any antiseptic quality. On the fifth issue, i.e.

whether the impugned advertisement constitutes an attack on Reckitt’s

goodwill and reputation, the arguments based on HUL’s evidence is

reiterated.

31. It is argued further that the proceedings in the present case being a

civil claim are not barred. Reckitt’s counsel relies on Section 9, CPC which

outlines jurisdiction of civil courts and states that such power can ousted

where cognizance is “expressly or impliedly barred.” In this context, Section

4 of the MRTP Act is relied on to say that application of other laws is not

barred. Even the provisions of Section 12B of the said Act – points out Mr.

Lal – clarify that the powers of the MRTP Commission are “without

prejudice to the right of such Government, trader or class of traders or

consumer or institute a suit.” Reliance is placed on the judgment of a learned

Single Judge in Citicorp. v. Todi Investors, 2006 (23) PTC 631 (Del). It is,

therefore, argued that there is no express or implied bar in the MRTP Act

and on the contrary, a specific provision saves the rights under other laws.

Furthermore, counsel submits that the common law remedy of false

advertising existed prior to the enactment of the MRTP Act which came into

existence in 1969. It did not bar the common law remedies. Learned counsel

also argues that the MRTP Act is essentially a consumer protection statute

and not a statute designed to protect the rights of one competitor against the

other. Such a competitor therefore must only approach the Civil Court and

not the MRTP Commission. Consumers on the other hand must approach the

MRTP and not the Civil Courts.

Damages: Reckitt’s counter claim

32. As to the issue of damages, it is contended that Reckitt established in

Issue No.1 and 5 its reputation in its DETTOL soaps. HUL in its written

statement admitted to “plaintiff’s soap being a Rs.200 crore brand.”

Therefore, any denigration caused will be caused to at least a Rs. 200 crore

brand. This will be the first important consideration for evaluating damages.

Reliance is placed on Ex.PW-1/19, a comparative table of the channels in

which advertisements of both products appear. This, Mr. Lal argues,

establishes how HUL targeted many of channels on which Reckitt

advertises. This fact is set out in Para 23 of the examination-in-chief of PW-

1. Likewise, counsel relied on Ex.DW-1/12 to DW-1/14, advertisements by

Reckitt. In each advertisement a mother is portrayed encouraging her child

to bathe with DETTOL soap. The defendant’s advertisement has denigrated

and undermined this entire advertisement campaign which admittedly was

run ‘on various TV channels” and was “viewed by consumers and public at

large” “on almost daily basis during different hours.” Admittedly, these

advertisements “are telecast during children’s houses for TV viewing and

also shown prominently in between family serials for universal viewing”

(counsel points out that all these are averments from the written statement).

HUL’s advertisement has seriously damaged Reckitt’s campaign by showing

the children now mocking at their mother for using DETTOL soap. This fact

was spoken to by PW-1 in his examination-in-chief. It is submitted that the

extent of damages can be determined by how extensively HUL used the

offending advertisement. Ex.DW-1/16 to Ex.DW-1/18 establish the extent of

this usage. A channel-wise break-up of the advertisement and the times that

it was repeated is clearly set out in Ex.DW-1/18. It is contended that DW-

1/17 shows how sales of HUL’s soap in the advertisement have increased. A

large part of this is attributable to the advertisement in issue. This is

specifically mentioned in the evidence of PW-1 at paragraph 26. Mr. Lal

also urged the Court to set aside the findings of the learned Single Judge

with respect to refusal to grant any general damages and pressed the counter

claim of Reckitt, limited to this extent. He submitted that there were

sufficient materials on record, empirically, to realistically evaluate general

damages in the manner known to law. Counsel stressed that though the

advertisement was for 30 seconds, its impact was widespread, since the

defendant HUL had targeted every channel that had been used by Reckitt; it

was pointed out that the advertisement was telecast no less than 4441 times

between end June and August, 2007. Furthermore Reckitt’s DETTOL brand

admittedly was worth Rs. 200 crores at that time. It was also urged that a

total quantity of 9132 tons of the article, DETTOL Original, was

manufactured during the period January to June, 2007 and that the marketing

expenses for that soap, in its new shape was Rs. 23.6 crores for the latter half

of that year. Counsel pointed out that the admitted advertising expense in

respect of LIFEBUOY which was the subject of the impugned advertisement

for one month alone (July 2007) was Rs. 2.5 crores, according to the

testimony of DW-1. Based on these facts, the learned Single Judge should

have awarded general (or compensatory) damages, upon a fair assessment. It

was submitted that in disparagement (of products and goods) or slander to

title, it is not easy to assess the extent of harm or injury as it might not be

always discernible in the short term and may have long term effect, having

regard to market forces.

33. HUL argues and its counsel, Mr Sethi, submits that the learned Single

Judge correctly evaluated the evidence and held that general damages should

not be awarded. Counsel submitted that production figures or amounts spend

towards publicity or even the number of times that the impugned

advertisement was published has little relevance to the issue of damages.

What is important is that the plaintiff has to establish that it suffered injury

capable of assessment in monetary terms, which it could not, in the facts of

the present case. Therefore, counsel concluded that the findings of the

learned Single Judge did not call for interference.

Analysis and conclusions

34. The law recognizes that tradesmen and manufacturers may commend

their goods and state that they are better than those of rival traders. Yet this

is with an important caution that the publisher or advertiser should not make

any false representation as to the quality or character of the rival or

competitor’s goods or products. If no such false representation (as to the

character or quality of the rival’s goods) is made, the advertisement of a

tradesman howsoever commendatory or exaggerated cannot result in an

actionable claim. Exaggerated claims sans such false representations are

known as ‘puffing’. This license – to puff – was recognized in Bubbuck v.

Wilkinson, 1899 (1) OB 86 where the Lindlay MR observed that mere

statement that the defendant’s goods are better than the plaintiff would not

be actionable. This reasoning was upheld in Allen v. Flood, 1898 AC 1.

Lindlay MR held that mere puffing would not be actionable because it

would “open a very wide door to litigation and might expose every man who

said its goods were better than another’s to the risk of action”. This was

echoed in White v. Mellin, 1895 AC 154 (widely cited by Indian Courts):

“Indeed the Courts of Law would be turned into machinery for advertising

rival productions by obtaining judicial determination which of the two was

the better”.

The determinative considerations were described in Cellacite & British

Uralite v. Robertson [The Times, July 23rd, 1957 (CA)] in the following, if

one may so term – legal ‘catch phrase’: ‘the general proposition is:

Comparison – Yes but Disparagement – No’. In De Beers Abrasive v.

International General Electric Co., 1975 (2) All ER 599, the Court

elaborated this as follows:

“In order to draw the line one must apply this test, namely, whether a

reasonable man would take the claim being made as a serious claim.”

35. Indian Courts have recognized actions for damages in a claim for

slander of goods. In Imperial Tobacco Company v. Albert Bonnan, AIR

1928 Calcutta 1 (DB), the Court held that to succeed in an action of slander

of goods, the plaintiff has to allege and prove that the statement complained

of was made concerning his goods and that it must be with the direct object

of injuring his business. In India, the decisions of various Courts, namely,

Hindustan Lever Ltd. v. Colgate Palmolive (I) Ltd. and Anr., 1998 (1) SCC

720, Pepsi Co Inc. & Ors. v. Hindustan Coca Cola Ltd & Anr., 2003 (27)

PTC 305 (Del) (DB), Reckitt & Colman of India Ltd. v. M.P. Ramchandran

& Anr., 1999 PTC (19) 741, have followed the English precedents on the

subject, especially the five guiding principles outlined in De Beers Abrasive

(supra). In Dabur India Ltd. v. Colgate Palmolive India Ltd, 2004 (29) PTC

401 (Del), the peculiarity of generic disparagement of rival products without

specifically pin pointing the rival goods was held to be objectionable. The

Court noticed that clever advertisement of a rival tradesman’s article without

specifically referring or alluding to it and observed that disparagement of a

class of goods can result if the rival’s goods fall within a class and can be

identified. We notice that this judgment was taken into consideration by the

learned Single Judge, as also two later English decisions, i.e., Jupiter Unit

Trust Managers Trust Ltd. v. Johnson Fry Asset Managers, (2000)

Unreported 19 April, QBD and DSG Retail Ltd. v. Comet Group, PLC

(2002) EWHC 116 (QBD).

36. HUL complains that the impugned judgment does not err in its

understanding of the law or the guiding principles but as to their application.

It is contended that the learned Single Judge even after noticing the law

incorrectly concluded that HUL’s products disparage Reckitt’s Dettol

Original. In its argument, HUL mainly contends that a frame by frame

analysis of the advertisement coupled with the ‘average man with imperfect

recollection’ test applied by the learned Single Judge has resulted in

distorted conclusions. It is also emphasized in this context that the Court

overlooked that the plaintiff did not present any or evidence proof and that

instead the Single Judge sought to judge the advertisement from the stand

point of a common or reasonable man without any witnesses’ deposition that

could have been tested through cross examination. This Court proposes to

address each of these submissions in turn.

37. Slander of goods is a species or branch of the law of defamation. It is

widely accepted that to be defamatory, an imputation must tend to lower the

claimant in the estimation of right thinking members of society generally,

(i.e., the reference to the ‘common’ or ‘reasonable’ man). The standard that

the statement must amount to ‘disparagement of … the reputation in the eyes

of right thinking men generally’ was spelt out in Leetham v. Rank (1912) 57

SJ 111, and also applied and followed in Byrne v. Deane, [1937] 1 KB 818

and in Campbell v. Toronto Star, (1990) 73 DLR 190. Whilst the Canadian

and Australian approach appears to be largely in tune with the English law

[ref Campbell (supra), a Canadian decision; and Reader’s Digest Services

Pty Ltd v. Lamb (1982) 150 CLR 500, an Australian decision], the approach

of the US Supreme Court appears to be a bit different. In a case where the

plaintiff, a teetotaller, sued the publisher of a news item that he used to drink

whiskey, in the course of its judgment, the US Supreme Court held that there

could be no general consensus or opinion that to drink whiskey was wrong

and yet at the same time observed [ref. Peck v. Tribune Co 214, US 185

(1909)] as follows:

“if the advertisement obviously would hurt the plaintiff in the estimation of

an important and respectable part of the community, liability is not a

question of a majority vote… No falsehood is through about or even known

by all the world. No conduct is hated by all. That it will be known by a

larger number and will lead an appreciable fraction of that number to regard

the plaintiff with contempt is enough to do her practical harm... It seems to

be impossible to say that the obvious tendency of what is imputed to the

plaintiff by this advertisement is not seriously to hurt her standing with a

considerable and respectable class in her community.”

38. An interesting and fascinating discussion on the subject may be found

in Gatley on Libel and Slander (10th Edition) (2004) (the Common Law

Library, Sweet & Maxwell, paragraphs 2.10 to 2.14). There, the expression

“right thinking person” was described as being

“as much an abstraction as the “reasonable man”: both serve as metaphors

for what is in fact the judge’s view of what is capable of being recognized as

acceptable public opinion. Perhaps the American approach makes this issue

more open to argument.

39. In the present case, the learned Single Judge in our opinion, correctly

described the guiding principles after discussing the case law on the subject

and even brought home the distinction between passing off actions – which

are concerned with deceptively similarity or confusion between the two

marks for which the test of impression gathered by an average woman or

man with imperfect recollection is applicable – and disparagement. The

impugned judgment notices this distinction and comments that

“in the case of disparagement, the one who disparages another’s product,

does not seek to make his product similar to the disparaged product, but to

distinguish it from the disparaged product. The object of disparagement is to

make the disparaged product appear to be as near or similar to the

competitor’s product. The comparisons, therefore, in cases of passing off

and in case of disparagement are different.”

40. Nevertheless, thereafter, in paragraph 27 of the impugned judgment,

the test applied in the present case is “stand point of an average man with

imperfect recollection who is also a user of Dettol original soap” to hold that

Dettol original was disparaged by the impugned advertisement.

41. This Court is of the opinion that the approach and understanding of

the learned Single Judge while discussing the law generally applicable as to

disparagement and permissible limits of puffing is correct and does not call

for any interference. At the same time, his allusion or reference to “average

man with imperfect recollection using Dettol soap” requires some

elaboration. Whilst there can be no quarrel with the fact that a reasonable

man and an average man refer to the same metaphor and imperfect

recollection refer to an natural attribute of a reasonable or average man, what

needs closer scrutiny is whether the standard applicable in judging

disparagement claims is if a particular class of user (in this case the Dettol

user) feels that the statement is disparaging. The learned Single Judge’s

discussions and conclusions on this are based upon his analysis of what

perceptions are discernible from the impugned advertisement. This is

elaborately discussed in paragraph 24 of the impugned judgment where two

kinds of users, i.e., the Dettol users and those who do not use that soap are

noticed. The learned Single Judge held that the latter, i.e., non-users may be

unaware of the unique curvature shape, packaging etc. of the Dettol soap

sufficiently to link it with Reckitt’s product as to possibly associate the

advertised product with Dettol, since the bar of soap in the impugned

advertisement is some unbranded soap. However, as far as the former

category is concerned, the learned Single Judge held the Dettol users would

“immediately recognize the bar of soap shown in the advertisement as

referring to the plaintiff original Dettol soap”. This was on account of

familiarity by reason of use of such soap and knowledge of its shape, colour,

size, contours and packaging.

42. The question which this Court, therefore, has to address itself to is

whether the learned Single Judge faulted in his approach towards applying

the test of a reasonable man with imperfect recollection as being a particular

class of such citizens, i.e., Dettol users and then proceeding to hold that such

class can clearly identify the soap in the impugned advertisement as the

plaintiff “Dettol original”.

43. The previous discussion on the question as to whose perception is to

be considered in an action for defamation or disparagement has revealed that

the law of defamation recognizes that it is the standard of the right thinking

or reasonable men and women of the community from whose stand point the

imputation requires to be judged. In the case of disparagement of a rival’s

product, it may also be necessary to keep in view the possibility that

potential users of the product could be warned away by the advertisement,

thus widening the “target group”. The American Court’s refinement to this is

that the standpoint should be that of “respectable men and women” of the

community to which the claimant belongs and not to all kinds of people.

Not infrequently, Courts have been confronted with the argument that the

target audience is not a specific one, but of all reasonable men and women

generally. This has been described in Gatley (supra), at paragraph 2.15) as

follows:

“…….First, it is plain that to say that the statement must lower the claimant

in the estimation of right-thinking persons generally does not mean that the

statement must be readily comprehensible to people in general: a defamatory

statement may be made in a foreign language or in a highly technical

scientific journal. In such cases there must be a publication to persons who

do in fact understand the statement in the sense of which the claimant

complains but the issue then seems to be “if this were explained to the

ordinary citizen would it reflect on the plaintiff’s reputation in his eyes?

Secondly, in many cases it may be possible to show that a charge of conduct

which in itself is obnoxious only to a limited group is defamatory because

the statement carries the additional imputation that the claimant is thereby

guilty of conduct, such as disloyalty or hypocrisy, which is regarded as

discreditable by reasonable people generally even though they may be

indifferent to the tenets of the group which is directly offended…”

44. There appears to be an overwhelming consensus of judicial opinion

that to determine whether a statement disparages or defames the viewpoint

to be considered is that of the general public (the refinements of whether

such “right thinking” or “reasonable” persons belong to a “respectable”

section of the public, apart). Thus, whenever an argument that a sectarian

approach (i.e. applying the standpoint of members of a section of the public)

is to be adopted, Courts have tended to reject it time and again. In Tolly v.

Fry, 1931 AC 333, the House of Lords had to decide if the depiction of the

plaintiff, an amateur golfer – without his consent – in an advertisement

defamed or caused injury to his amateur status (which was during the times

regarded as valuable for a golfer). The advertisement contained a limerick

and also the plaintiff’s picture. It was argued unsuccessfully by the plaintiff

that the governing test was whether the knowing public (i.e. those aware

about the nature of the game, and the valuable status of an amateur, at that

time) would regard the depiction and the statement as defamatory. The

House of Lords, which had to decide whether the judgment which left the

matter to the judge, instead of the jury, was a correct one, held that the

guiding principle was one of perception of the general public and not the

golf knowing citizens. This was emphasized in the judgement:

“The question here does not depend upon a state of

facts known only to some special class of the community, but to

the inference which would be drawn by the ordinary man or woman

from the facts of the publication.”

Similarly, in Gillick v. Brook Advisory Centres [2001] EWCA Civ 1263, the

following approach was adopted:

“the court should give the article the natural and ordinary meaning which it

would have conveyed to the ordinary reasonable reader reading the article

once. Hypothetical reasonable readers should not be treated as either naive

or unduly suspicious. They should be treated as being capable of reading

between the lines and engaging in some loose thinking, but not as being avid

for scandal. The court should avoid an over-elaborate analysis of the article,

because an ordinary reader would not analyse the article as a lawyer or

accountant would analyse documents or accounts. Judges should have regard

to the impression the article has made upon them themselves in considering

what impact it would have made on the hypothetical reasonable reader. The

court should certainly not take a too literal approach to its task.”

45. In Petra Ecclestone v. Telegraph Media Group Ltd, 2009 EWHC 2779

(QB), the imputations against which the claimant sued Telegraph Media

Group were that Sir Paul McCartney’s public call for “Meat free Mondays”

did not impress the plaintiff/claimant who is reported to have said that she

was not a “veggie” and did not have time for people like McCartney. The

Court rejected the submission of defamatory imputation and observed that:

“It might be that a sector of the public (i.e. those who disapproved of the use

of leather or eating animal products) could think the less of the Claimant for

taking the opposite stance, and might even do so because of what she is

reported to have said about the McCartneys and Annie Lennox. But the test

is not whether a sector of the public could think less of the Claimant for

what she is alleged to have said (see Arab News Network v Al Khazen

[2001] EWCA Civ 118 at [30]), but whether ordinary reasonable people in

our society as a whole - or to use Mr Barca’s phrase ‘the public’ generally

could do so. In our society people hold different (and sometimes strong)

views on any number of issues including the use of animal products. In a

democratic society where freedom of expression is a protected right, people

are entitled to hold strong views, and to express them within the limits laid

down by law.”

The point was again brought home in yet another later decision, Robert

Crow v. Boris Johnson, [2012] EWHC 1982 (QB), which also cited Tolley

(supra):

“The law can conveniently be taken from the judgment of Thomas LJ in

Modi v Clarke [2011] EWCA Civ 937 paras 10 to 12:

“12. It was also accepted that there is a distinction between “people

generally” and a section of people. The distinction is set out in a number of

authorities but the one relied on before the judge was that of Greer LJ in

Tolley v Fry [1930] 1 KB 467 at 479 where he said:

“Words are not defamatory, however much they may damage a man in the

eyes of a section of the community unless they also amount to

disparagement of his reputation in the eyes of right thinking men generally.

To write or say of a man something that would disparage him in the eyes of

a particular section of the community but will not affect his reputation in the

eyes of the average right thinking man is not actionable within the law of

defamation.”

46. The discussion may be usefully summed up in the words of the

Australian High Court in Reader’s Digest (supra):

“7. Where no true innuendo is pleaded and the published words clearly

related to the plaintiff, the issue of libel or no libel can be determined by

asking whether hypothetical referees - Lord Selborne’s reasonable men

(Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741, at p 745 ) or

Lord Atkin’s right-thinking members of society generally (Sim v.

Stretch (1936) 52 TLR 669, at p671 or Lord Reid’s ordinary men not avid

for scandal (Lewis v. Daily Telegraph Ltd. (1964) AC, at p 260 ) - would

understand the published words in a defamatory sense. That simple question

embraces two elements of the cause of action: the meaning of the words

used (the imputation) and the defamatory character of the imputation.

Whether the alleged libel is established depends upon the understanding of

the hypothetical referees who are taken to have a uniform view of the

meaning of the language used, and upon the standards, moral or social, by

which they evaluate the imputation they understand to have been made.

They are taken to share a moral or social standard by which to judge the

defamatory character of that imputation (Byrne v. Deane (1937) 1 KB 818,

at p 833 , being a standard common to society generally (Miller v. David

(1874) LR 9 CP 118 ; Myroft v. Sleight (1921) 90 LJKB 883 ; Tolley v. J.S.

Fry &Sons Ltd. (1930) 1 KB 467, at p 479…”

47. Thus, the conclusion of the above discussion is that the learned Single

Judge’s appreciation of the law, i.e. that the perspective of the Dettol users

guides the court in considering whether HUL disparaged Reckitt’s soap is

erroneous, as it is based on a sectarian and “section of the public” point of

view and not of the “right thinking” or “reasonable” member of the public

generally. As to whether this approach has resulted in a wrong conclusion, is

another matter, which the Court would consider presently.

48. The next aspect to be considered is the nature of judicial scrutiny.

HUL complains that the learned Single Judge fell into error in making a

frame by frame, bit by bit analysis of the impugned advertisement and

thereby overlooked the guiding test that the advertisement or publication has

to be seen as a whole, rather than in a sectional manner, to decide if it

denigrates or disparages a rival product.

49. The first question here is as to the manner in which such

advertisements are to be viewed, and secondly, the legal standard against

which the advertisement is to be judged. On this question, the advertisement

must be seen as a viewer would normally view it in the course of the

television programme, and not specifically with a view to catch an

‘infringement’. This distinction is thin, but important: in trying to determine

whether commercial disparagement has occurred, the relevant consideration

is how the viewer (i.e. the individual to whom the alleged disparagement is

addressed) would see the advertisement. This consideration is important also

because of the manner in which the advertisement is appreciated – whether

as a running reel or frame by frame. The answer to this necessarily is the

former, for two clear reasons. First, when deciding such matters, the judge is

to consider (as will be discussed below) how an average, reasonable man

would view the advertisement as it appears on the television or electronic

medium, as in the present case. In order to do this, the endeavour of the

court is to substitute its judgment for that of the average/reasonable man.

Undoubtedly, when the advertisement is displayed on the television, it is not

scrutinized in every detail by the viewers, but rather, taken as a whole as it is

displayed. This simple proposition is of great relevance, since a judge, sits in

an adversarial setting with the clear purpose of determining whether

commercial disparagement has occurred, and thus, on the look-out for any

indication of the same, must equally remain cautious that the advertisement

is viewed as viewers normally view it.

50. These concerns have been echoed by several courts – for example, in

Skuse v. Grenada, [1993] EWCA Civ 34, the Court noted that

“[w]hile limiting its attention to what the defendant has actually said or

written, the court should be cautious of an over-elaborate analysis of the

material in issue.”

Earlier, in Slim and Others v. Daily Telegraph and Others, [1968] 2 QB 157,

a case concerning libel, Lord Justice Diplock struck an important point:

“In the spring of 1964 two short letters appeared in the correspondence

columns of the “Daily Telegraph.” Written by Mr. Herbert, they formed part

of a robust though desultory controversy about the prospective use by motor

vehicles of a public footpath forming part of Upper Mall in Hammersmith.

Neither letter can have taken a literate reader of that newspaper more than 60

seconds to read before passing on to some other, and perhaps more

interesting, item. Any unfavourable inference about the plaintiffs’ characters

or conduct which he might have drawn from what he read would have been

one of first impression. Yet in this court three lords justices and four counsel

have spent the best part of three days upon a minute linguistic analysis of

every phrase used in each of the letters. If this protracted exercise in logical

positivism has resulted in our reaching a conclusion as to the meaning of

either letter different from the first impression which we formed on reading

it, the conclusion reached is unlikely to reflect the impression of the

plaintiffs’ character or conduct which was actually formed by those who

read the letters in their morning newspaper in 1964.”

51. The importance of returning to the meaning conveyed at first

impression, which for the viewer, at least in so far as advertisements such as

the present one are concerned, is also the final impression, is crucial. This

was also stated in McDonalds v. Burger King, (1986) FSR 45, in noting that:

“advertisements are not to be read as if they are testamentary provisions in a

will or a clause in some agreement with every word being carefully

considered and the words as a whole being compared.”

52. On this question, we must examine the approach of the learned

Single Judge closely – in that the Court applied the legal standard (which

will be discussed below) on a frame by frame appreciation of the impugned

advertisement. Such approach, with due respect, in this court’s opinion, is

incorrect. The conclusions apart, the method employed in determining

whether disparagement has occurred (and crucially, the effect on the

consumer’s mind) must be considered by Courts in such cases. The learned

Single Judge has, at paragraph 21 of the impugned judgment, considered

each frame of the advertisement in detail, and further, in paragraph 22,

considered some still pictures from the advertisement where the Dettol soap

is alleged to be shown. Relying on these photographs, the learned Single

Judge reached the conclusion that the soap displayed in the advertisement

does indeed refer to the Dettol soap. This, in the opinion of the Court, cannot

be the correct approach; the appropriate method of viewing the

advertisement objected to would be to consider its overall effect.

Was the impugned judgment in error in its appreciation of the evidence

53. HUL complains that the impugned judgment is in error because the

learned Single Judge held that in the final analysis the judge has to decide,

after considering the advertisement and its effect: