COMMENT: In this Judgment, the Hon’ble Delhi High Court has
laid down the following important proposition.
The
Hon’ble Delhi High Court, while discussing the case of disparagement , has
reaffirmed the following principle:
(1) The court should
give to the material complained of the natural and ordinary meaning which it
would have conveyed to the ordinary reasonable reader reading the article or
viewing the programme once.
(2) The hypothetical
reasonable reader (viewer) is not naïve but he is not unduly suspicious. He can
read between the lines. He can read in an implication more readily than a
lawyer and may indulge in a certain amount of loose thinking. But he must be
treated as being a man who is not avid for scandal and someone who does not,
and should not, select one bad meaning where other non-defamatory meanings are
available. (Emphasis added.)
(3) While 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.
(4) The reasonable
reader does not give a newspaper item the analytical attention of a lawyer to
the meaning of a document, an auditor to the interpretation of accounts, or an
academic to the content of a learned article.
(5) In deciding what
impression the material complained of would have been likely to have on the
hypothetical reasonable reader the court is entitled (if not bound) to have
regard to the impression it made on them.
(6) The court should not
be too literal in its approach. The above list was broadly followed by the
Court of Appeal in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14],
save that it added the important point that the hypothetical reader is taken to
be representative of those who would read the publication in question.‖
THE HIGH COURT OF
DELHI AT NEW DELHI
FAO (OS) 396/2013 & CM No. 13486/2013
COLGATE PALMOLIVE
COMPANY AND ANR. .....Appellants
Versus
HINDUSTAN UNILEVER LTD. .....Respondent
Advocates who appeared in this case:
For the Appellants : Mr C.M. Lall, Ms Nancy Roy
and Ms Pragya Nalwa.
For the Respondent : Mr Neeraj Kishan Kaul, Sr.
Advocate with Mr Sameer Parekh, Ms Rukmini, Mr Shashank
and Ms Sanjana.
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. This is a composite
appeal preferred by the appellants/plaintiffs challenging the order dated
27.08.2013 (hereinafter referred as the 'second impugned order') passed by a
learned Single Judge of this Court in an application filed by the appellant
under Order 39 Rule 1 & 2 of CPC being I.A. No.13434/2013 which in turn was
filed in CS(OS) No.1588/2013. The appellant also challenges the order dated
27.08.2013 rejecting the Review Petition, being R.P. No.424/2013 filed under
Order 47 Rule 1 read with Sections 114 and 151 of the CPC, seeking review of
the order dated 21.08.2013 passed by the learned Single Judge in I.A.
No.12818/2013. The learned Single Judge has, by the second impugned order,
directed issuance of notice to the respondent in I.A.13434/2013, thereby not
granting the prayer for an ad-interim injunction restraining publication and
telecast of the printed and television commercial respectively, which are
alleged to disparage the products, goodwill and reputation of the appellants.
The present appeal also impugns the order dated 21.08.2013 passed by a learned
Single Judge of this Court in I.A. No.12818/2013 filed under Order 39 Rule 1
& 2 of the CPC (hereinafter referred to as the ‗impugned order'), whereby
the said application for grant of interim injunction was dismissed by holding
that the said advertisements in question did not disparage or denigrate the
product of the appellants/plaintiffs.
2. The controversy in
the present case relates to an advertisement campaign pursued by the
respondent/defendant to advertise its product - a Toothpaste which is sold as
―Pepsodent Germicheck Super Power‖ (hereinafter referred to as Pepsodent GSP').
The advertisement campaign includes a television commercial as well as
advertisements in the print media. An advertisement in the print media appeared
in the front page of the newspaper ―Hindustan Times‖, New Delhi edition on
11.08.2013. The said advertisement in print media has also appeared in several
national dailies, including in modified forms. The commercial on television has
also been repeated on several occasions. Both the Television commercial as well
as the advertisements in the print media seeks to convey that Pepsodent GSP is
130% better than the product of the appellant namely ―Colgate Dental Cream
Strong Teeth‖ (hereinafter referred to as ‗Colgate ST'). The Television
commercial is hereinafter referred to as ‗impugned TVC' and the advertisement
that was published in Hindustan Times on 11.08.2013 is hereinafter referred to
as ‗impugned print advertisement'. The said advertisements are collectively
referred as the ‗impugned advertisements'.
3. The
appellants/plaintiffs have filed the suit CS(OS) No.1588/2013, inter-alia,
seeking a permanent injunction restraining the respondent from publishing
and/or telecasting the impugned advertisements or any other similar
advertisement or in any other manner disparaging the goodwill and reputation of
the plaintiffs and their products sold under the trade mark 'COLGATE'. The
appellants/plaintiffs also filed an application (I.A. No.12818/2013 under Order
39 Rule 1 & 2 of the CPC) along with the suit for granting ad-interim
injunction against the impugned advertisements and the same was dismissed by
the learned Single Judge of this Court on 21.08.2013.
4. The
appellants/plaintiffs preferred an appeal (FAO(OS) No.381/2013) before a
Division Bench of this Court challenging the impugned order dated 21.08.2013
and the Division Bench of this Court, on 23.08.2013, permitted the
appellants/plaintiffs to withdraw the appeal with liberty to file a fresh
application for injunction before the learned Single Judge and place on record
such new material to establish that the impugned advertisements were
disparaging the products of the plaintiffs. The relevant extract of the order
dated 23.08.2013 is quoted as under:-
―During the course of
submissions, learned counsel for the appellants stated that new material in the
form of newspaper articles, letters from dentists and information from
consumers has been made available to establish disparagement in the minds of
the consumers. He seeks liberty to approach the learned Single Judge with a
fresh application for injunction and place on record such new material.
Liberty granted. All
rights and contentions of the parties are reserved. It is open to the appellant
to impugn the correctness of the order which may be made in the fresh
application and also if necessary, impugn the order which is the subject matter
of the present appeal. In view of the above, the appeal is dismissed as withdrawn.
5. The
appellants/plaintiffs immediately filed a fresh application (I.A.
No.13434/2013) under Order 39 Rules 1 & 2 read with Section 151 of CPC
bringing on record new facts and documents before the learned Single Judge and
also filed a Review Petition (R.P. No.424/2013) seeking review of the order
dated 21.08.2013 on account of certain alleged errors which were contended to
be apparent in the order dated 21.08.2013. By the second impugned order, the
Review Petition was dismissed by the learned Single Judge holding that no
ground for review of the order dated 21.08.2013 was made out. In respect of the
application under Order 39 Rule 1 & 2 of CPC (I.A. No.13434/2013), the
learned Single Judge did not grant the ad-interim injunction as sought for by
the plaintiffs and issued notice to the respondent for filing their response.
Aggrieved by the dismissal of the Review Petition and non grant of the
ad-interim injunction, the appellants have preferred the present appeal.
Submissions on behalf of
the Appellants
6. The appellant has
contended that the claim made by the respondent, regarding its product
Pepsodent GSP, in the impugned advertisements is based on denigration of the
plaintiffs product and malicious falsehood in common law and under Sections
29(8) and 30(1) of the TradeMark Act, 1999. The impugned advertisements are
contended to be detrimental to the distinctive character and reputation of the
trademark of the petitioner. It is further contended that the impugned
advertisements cannot be construed as mere puffery in respect of the
respondent's product Pepsodent GSP but constitute untrue statements of facts in
relation to Colgate ST as well as Pepsodent GSP.
7. It is contended that
the learned Single Judge has erred in concluding that the impugned
advertisements neither disparage nor denigrate the product Colgate ST. The
counsel for the appellant has placed the impugned advertisements and has made
submissions thereon pointing out certain aspects, which we shall advert to
later, which according to him clearly indicate that the impugned advertisements
are disparaging of the product of the appellant. It is also urged that the
impugned advertisements constitute malicious falsehood, inasmuch as, the
essential message conveyed by the impugned advertisements is false and the
impugned advertisements are designed to falsely show that the product of the
respondent is superior to that of the petitioner in respect of its
anti-bacterial/germ qualities and in respect of preventing tooth decay.
8. It is contended on
behalf of the appellant that the learned Single Judge has erred in examining
the impugned advertisements as may be viewed by a discerning viewer. According
to the appellant, the correct test that needs to be applied is to determine as
to how the impugned advertisements would be viewed by average consumers with
imperfect recollection. The learned counsel for the appellant contended that
even though the impugned advertisements may be construed as not disparaging of
the products of the appellant by some viewers, nonetheless, the court would
interdict such advertisements, if the advertisements were capable of being
construed differently by other consumers. In other words, it is contended that
if an advertisement or an expression is capable of two meanings, one of which
is disparaging while the other is not, the court will, nonetheless, issue an
injunction restraining the dissemination of the same as disparaging the product
or reputation of the concerned party. This proposition has been referred as the
―multiple meaning rule‖. According to the appellant, the impugned
advertisements must be tested on the anvil of the multiple meaning rule. It is
submitted that this rule is well accepted and applied by courts in various
cases and the learned counsel has referred to Ajinomoto Sweeteners Europe SAS
v. Asda Stores Ltd.: [2011] Q.B. 497, Glaxo Smithkline Consumer Healthcare
Limited and Others v. Heinz India Private Limited and Another: I.A.
No.15233/2008 in CS (OS) No.2577/2008, Decided on 12.11.2010, Reckitt Benckiser
(India) Ltd. v. Hindustan Unilever Ltd.: 2008 (5) R.A.J. 664 (Del.) and Reckitt
Benckiser (India) Ltd. v. Hindustan Unilever Ltd.: 200 (2013) DLT 563 in this
regard.
9. The learned counsel
for the appellant has also submitted that the entire claim as made in the
impugned advertisements is based on an alleged study done where it has been found
that, after four hours of brushing, the retention of Triclosan in the dental
plaque on usage of Colgate ST is 37.1 ppm and on usage of Pepsodent GSP is 48.8
ppm. On the basis of this study, the impugned advertisements profess a higher
efficiency in dealing with dental cavities as compared with Colgate ST. The
correlation which is sought to be portrayed between higher levels of Triclosan
and cavities is contended to be malicious and misleading insofar as it
indicates that Colgate ST is in any manner inferior in respect of preventing
cavities compared to Pepsodent GSP. This according to the appellant is for two
reasons:-
(a) It is contended that
a minimum level of Triclosan that is required for killing oral bacteria or in combating
its growth (referred to as Minimum Inhibitory Concentration - MIC) for plaque
bacteria is in the range of 0.2-0.3 ppm. It is contended that as long as this
minimum level is maintained there would be no additional benefit even if a
higher level of Triclosan are delivered. The learned counsel sought to draw our
attention to various documents in support of this contention. Viewed in this
perspective, the impugned advertisements would be misleading, inasmuch as, the
advertisement conveys a higher efficiency in dealing with oral bacteria/germs
in comparison with Colgate ST.
(b) It was further urged
on behalf of the appellant that there are several reasons of tooth decay and
plaque bacteria by itself does not cause cavities. The appellant's product also
has additional ingredients, to combat cavities which prevent tooth decay,
including fluoride which is one of the most vital ingredient for prevention of
tooth decay. If the impugned advertisements are viewed in this factual
backdrop, it would be apparent that the same are false and misleading inasmuch
as they seek to correlate Triclosan with cavities and profess that Pepsodent is
superior in combating cavities in comparison with Colgate ST.
10. The learned counsel
for the appellant has also contended that the learned Single Judge has erred in
proceeding on the basis that Colgate ST contained only 0.2% Triclosan as
compared to Pepsodent GSP. It is contended that this is erroneous as,
admittedly, Colgate ST also contains 0.3% Triclosan and this fact is not
disputed. The learned counsel has drawn our attention to Para 6 of the reply
filed by the respondent wherein it has been stated that Colgate ST has the same
level of permissible Triclosan (0.3%). This was also one of the grounds for
review in R.P. No.424/2013. It is further contended that the claim of 130% germ
attack power has been erroneously held by the learned Single Judge to be
puffing up of Pepsodent GSP in comparison with Colgate ST. According to the
appellant, it is only the humorous and hyperbolic claims that can be considered
as exaggeration or puffing. It is contended that all claims which would be
taken seriously by a reasonable man cannot be overlooked as puffery. It is
contended that a claim of 130% better germ killing quality is a serious claim
and is liable to be viewed as such by any reasonable viewer and thus, the same
cannot be considered as mere puffery or exaggeration and, as such, the claim
would fall foul of the ASCI Code.
11. The appellant has
also seriously disputed the claim of the respondent that Pepsodent GSP has the
quality of sustained release of retained Triclosan. It is contended that only
Colgate Total (which is another product manufactured by the plaintiffs)
contains ‗Gantrez' which permits sustained release of Triclosan. In addition,
the learned counsel for the appellant also submitted that the ‗Super', (i.e.
the string of textual messages which are placed at the bottom of the screen
during certain portions of the impugned TVC) which is considered by the learned
Single Judge, is not visible when impugned TVC is viewed on a normal TV. The
said Super which reads as under is thus not visible to a average viewer:-
―Creative visualisation
of the action of triclosan on cavity and causing germs. New Pepodent Germicheck
enhances delivery of triclosan in the mouth. Claim based on the In-Vivo study
where Germ Attack Power refers to amount of Triclosan remaining in the mouth 4
hours after brushing where Colgate Strong Teeth is indexed at 100% and
Pepsodent GSP 130%. Brush twice daily.‖
It is contended that the
learned Single Judge, thus, erred in relying on the same and failed to consider
that as per the ASCI Code, the ‗Supers' are required to be legible on a
standard television set.
12. It is contended by
the appellants that the appellants had established a good prima facie case and
the learned Single Judge erred in not considering the balance of convenience
and the irreparable loss to the reputation and goodwill of the appellants that
would be caused if the ad-interim injunction as prayed for was not granted.
Submissions on behalf of
the Respondent
13. The respondent has
raised a preliminary objection with respect to maintainability of the present
appeal. It is contended on behalf of the respondent that the present appeal is
a composite appeal against three orders including the order dated 27.08.2013
dismissing the review petition, R.P. No. 424/2013. It is submitted that an
appeal against an order rejecting the application for review was barred under
provisions of Order 47 Rule 7 of CPC. In support of this contention, the
respondent has relied upon the decision of the Supreme Court in the case of
Shanker Motiram Nale v. Shiolalsing Gannusing Rajput: (1994) 2 SCC 753.
14. It is further
submitted on behalf of the respondent that by virtue of the second impugned
order, the Court has issued notice in IA No.13434/2013 and has not rejected the
said application. Thus, the second impugned order would not be an appealable
order as no appeal has been provided under CPC. The same could also not be
construed as a ―Judgment‖ and, consequently, an appeal under Section 10 of the
Delhi High Court Act, 1966 would also not lie against the second impugned
order. In support of his contention, the respondent has relied on the decision
of this Court in Nisha Raj and Anr. v. Pratap K. Kaula and Ors.: 57 (1995) DLT
490. The respondent has also placed reliance on the decision of the Supreme
Court in the case of Shah Babulal Khimji v. Jayaben D. Kania & Anr.:
(1981) 4 SCC 8. It is submitted that for an interlocutory order to qualify as a
judgment, the same must have a element of finality. It is submitted that the
second impugned order does not have any trappings of finality attached and
thus, no appeal would lie against the said order.
15. The learned counsel
for the respondent has also submitted that an appeal against the impugned order
was also not maintainable at this stage in view of the earlier order passed by
a Division Bench in FAO(OS) No.381/2013. It is contended that the order dated
23.08.2013 passed in FAO(OS) No.381/2013 granted liberty to the appellant to
impugn the correctness of the order which may be passed in the fresh
application as also the order impugned therein (i.e. the impugned order in the
present appeal). According to the learned counsel for the respondent, the
appellants are at liberty to challenge the impugned order, however, the same
could only be done after the fresh application filed by the appellant before
the learned Single Judge had been considered and decided. Since, in the present
case, IA No.13434/2013, which was filed pursuant to the liberty granted by the
Division Bench by the order dated 23.08.2013, is still pending, the appellant
is not at liberty to file the present appeal.
16. It has been
contended on behalf of the respondent that the impugned advertisements are
comparative advertisements which are permissible. The learned counsel for the
respondent has supported the finding of the learned Single Judge that the
impugned advertisements do not disparage the products of the appellant nor
denigrate the goodwill and reputation of the appellants in any manner. It is,
thus, contended that the said advertisements are not proscribed. The learned
counsel relied on the decision of a Division Bench of this Court in Dabur India
Ltd. v. Colortek Meghalaya Pvt. Ltd. & Anr.: 167 (2010) DLT 278 (DB), in
support of his contention.
17. It has been
contended on behalf of the respondent that advertisements are to be viewed as a
whole and the respondent place reliance on the decisions in Marico Limited v.
Adani Wilmar Limited: 199 (2013) DLT 663, Glaxo Smithkline Consumer Healthcare
Limited and others v. Heinz India Private Limited and another: I.A.
No.15233/2008 in CS (OS) No.2577/2008, Decided on 12.11.2010 and McDonald's
Hamburgers Ltd. v. Burgerking (UK) Ltd.: [1986] F.S.R. 45. The learned counsel
has relied on the decision in the case of Reckitt Benckiser (India) Limited v.
Hindustan Unilever Limited: 2008 (5) R.A.J. 664 (Del.), and contended that the
test of an average person with imperfect recollection is applied for determining
disparagement.
18. It is contended on
behalf of the respondent that the advertisement is a form of commercial speech
and as such is protected under Article 19(1)(a) of the Constitution of India.
Thus, the impugned advertisements cannot be interdicted by any law unless the
same falls within the exception of Article 19(2) of the Constitution of India.
In support of this contention, the respondent has relied upon the decision of
the Supreme Court in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.:
(1995) 5 SCC 139.
19. The learned counsel
for the respondent has controverted the contention that the ‗multiple meaning
rule' should be applied to the facts of the present case. It is contended that
the learned Single Judge has rightly applied the test as to how the impugned
advertisements would be viewed by a discerning viewer. It is contended that the
multiple meaning rule as canvassed by the appellant has no basis in law and the
said rule has not been accepted in India. It is further contended that this
rule is also not accepted in the United Kingdom. The learned counsel has sought
to distinguish the case of Ajinomoto Sweeteners Europe SAS (supra) by
contending that the said case did not relate to grant of interim relief but
related to the instructions given to a Jury and, as such, the said rule could
not be applied in the present case. The learned counsel also relied on the
decision in the case of Tesla Motors Ltd, Tesla Motors Inc. v. British Broadcasting Corporation: [2013] EWCA Civ 152
to contend that even in United Kingdom, the test of multiple meaning rule has
not been followed.
20. The respondent
further contended that the impugned advertisements were truthful and the claims
made in the impugned advertisements were substantiated by the In vivo and In
vitro tests carried out by two independent laboratories. The respondent further
supported the findings of the learned Single Judge and contended that the same
were neither perverse nor against any settled principle of law and thus, could
not be interfered with by an appellate court. With regard to the appellants
contention that additional Triclosan concentration did not in any manner
provide additional protection against dental cavities as conveyed by the
impugned advertisements as also the contention that better efficiency of
protection against tooth decay and cavities could not be projected on the basis
of a higher concentration of triclosan, the respondent pointed out, at the
close of the arguments, that the said contentions were not urged before the
learned Single Judge and also before this Court in the opening arguments. It
was submitted that as there was no occasion for the respondent to deal with the
said contentions, the same could not be entertained by this Court.
Re: Preliminary
objection regarding maintainability of the appeal
21. The present appeal
is a composite one whereby the appellants have challenged three orders. Insofar
as the challenge to the impugned order is concerned, there can be no dispute
that in the normal course an appeal would be maintainable against the impugned
order whereby the application of the appellants under Order 39 Rule 1 & 2
being IA No.12818/2013 has been finally rejected. The controversy regarding
maintainability of the appeal against the impugned order is premised only on
the interpretation of the order dated 23.08.2013 passed by a Division Bench of
this Court in FAO(OS) 381/2013. According to the respondent, the appellants
having withdrawn their earlier appeal (FAO(OS) 381/2013) are precluded from
filing a fresh appeal against the impugned order save as except in accordance
with the liberty granted by the Division Bench in their order dated 23.08.2013
passed in the said FAO(OS) 381/2013. Considerable amount of time has been
consumed by the respondent in attempting to interpret the said order dated
23.08.2013 as having not granted the appellants the liberty to file a fresh
appeal to challenge the impugned order before the fresh application under Order
39 Rule 1 & 2 contemplated therein (which subsequently came to be filed and
numbered as IA No. 13434/2013) had been finally heard and decided. A plain
reading of the order dated 23.08.2013 indicates that all rights and contentions
of the parties were reserved and the Court expressly recorded that it was open
for the appellants to impugn the correctness of the order which may be made in
the fresh application and also if necessary impugn the order which was subject
matter of that appeal (i.e the impugned order herein). We are unable to read
any restriction in this order which would prevent the appellant from preferring
an appeal against the impugned order prior to the decision in the fresh
application that was filed pursuant to the liberty granted by the Court by
virtue of the order dated 23.08.2013. It is apparent that the appellants
desired to place certain material before the Single Judge in order to persuade
the learned Single Judge to grant an ad-interim injunction against the impugned
advertisements and had, accordingly, withdrawn the earlier appeal with liberty
to file a fresh appeal, if necessary. The appellants were not successful in
persuading the learned Single Judge for an ad-interim order and have thus,
found it necessary to file a fresh appeal challenging not only the impugned
order but also the non grant of relief as prayed for in the fresh application
(I.A. 13434/2013 filed by them). As we are unable to read in the order dated
23.08.2013 any restriction as to the liberty granted to the appellants, we
reject the preliminary objection raised by the respondent in respect of the challenge
to the impugned order. We are also persuaded by the fact that although,
admittedly, the appellants have the right to appeal against the impugned order,
their earlier appeal had, indisputably, not been heard and decided. We find no
reason to deprive the appellants of their right to challenge the impugned
order.
22. Insofar as, the
present appeal challenges the second impugned order, it is to be noted that IA
No.13434/2013 has not been disposed of. However, according to the appellants
non grant of an ad-interim order itself has wide ramifications as far as the
business of the appellants is concerned. It has been contended on behalf of the
appellants that while the appellants have more than 50% market share of the
total market relating to dental creams, the respondents market share is less
than 6%. It is the case of the appellants that the impugned advertisements are
disparaging and impermissible in law. Thus, insofar as the appellants are
concerned, if they are correct in their claim, a denial of an ad-interim
injunction would, undoubtedly, affect their valuable rights. An advertisement
by a party which disparages the goods of its competitors, indisputably, must be
interdicted at the earliest. The non grant of ad-interim relief in such cases would
tantamount to permitting a party to continue to slander, disparage and
denigrate the goods of its competitor and it could not be disputed that from
the standpoint of a party complaining against such disparagement, a denial of
non grant of an ad-interim order would cause serious injustice to the party
concerned. The decision of the Supreme Court in Shah Babulal Khimji (supra)
also explains that although every interlocutory order cannot be recorded as a
judgment but those orders which decide the ―matter of moment or affect vital
and valuable rights of the parties and which work serious injustice to the
party concerned‖ would be considered orders in respect of which an LPA would
lie.
23. The question whether
an order issuing notice would be appealable was considered by a division bench
of this Court in Nisha Raj v. Pratap K Kaula (supra). In that case, a Division
Bench of this court held that Order 43 Rule 1(r) of the Code of Civil
Procedure, 1908 provides for an appeal against an order passed under Order 39
Rule 1, Rule 2 or Rule 2A, Rule 4 or Rule 10, however, an order issuing notice
is an order under Order 39 Rule 3 and no appeal has been provided against an
order passed under order 39 Rule 3 of Code of Civil Procedure, 1908. Thus, an
appeal against an order issuing notice would not lie under the provisions of
the Code of Civil Procedure. In regard to the question whether an order issuing
notice would amount to a judgment under section 10 of the Delhi High Court Act,
1966, the Court held that certain interlocutory orders which are not covered by
Order 43 Rule 1 of Code of Civil Procedure, 1908 will, nonetheless, be
appealable under section 10 of the Delhi High Court Act, 1966 provided the
orders possess the characteristics and trappings of finality. It was further explained
by the Division Bench of this Court that directing issuance of a notice may
indeed be a final order in the rarest of rare cases where there is no
possibility of restitution. The illustrations of the rarest of rare cases that
were cited by the Court included cases where goods were in the process of being
exported beyond the territorial waters or where the case pertained to execution
by a death sentence. In such cases, restitution was clearly not possible and
there was no chance of any kind of retrieval. The Court held that in such
category of cases the impact of issuing a notice would be direct and immediate.
24. Taking a cue from
the aforesaid judgments in Nisha Raj v. Pratap K. Kaula (supra) and Shah
Babulal Khimji (supra), we must apply the tests whether the second impugned
order irretrievably prejudices the rights of the appellant or whether it
decides a matter of moment or affects vital and valuable rights of the parties
which work serious injustice to the party concerned. In our view, the answer to
this must be in the negative, particularly, in the light of the fact that the
earlier interim application seeking similar reliefs had been heard and decided
by the learned Single Judge by the impugned order. Accordingly, the present
appeal is restricted to challenging the impugned order and on the material
placed and the contentions advanced before the learned Single Judge in respect
of I.A. 13434/2013.
25. Insofar as, the
challenge to the order dated 27.08.2013 is concerned inasmuch as it rejects the
Review Petition (R.P. No.424/2013), the same is clearly not maintainable in
view of the express language of Order 47 Rule 7(1) of the Code of Civil
Procedure, 1908 which provides that an order of the Court rejecting an
application for review shall not be appealable. Accordingly, the challenge to
the order rejecting the review petition cannot be considered.
Discussion as to law on
disparagement
26. Before proceeding
further to address the controversy involved in the present proceedings, it
would be apposite to bear in mind the meaning and import of the expressions
―disparagement‖ and ―puffing‖ and similar cognate expressions. The Black's Law
Dictionary, Eighth Edition, defines ―Disparagement‖ to inter-alia mean:-
―A derogatory comparison
of one thing with another; the act or an instance of castigating or detracting
from the reputation of, esp. unfairly or untruthfully; a false and injurious
statement that discredits or detracts from the reputation of another's
property, product or business.‖
Black's Law Dictionary,
Eighth Edition, defines ―Trade Disparagement‖ to inter-alia mean:
―The common-law tort of
belittling someone's business, goods, or services with a remark that is false
or misleading but not necessarily defamatory. To succeed at the action, a
plaintiff must prove that; the defendant made the disparaging remark; the
defendant intended to injure the business, knew that the statement was false,
or recklessly disregarded whether it was true; and the statement resulted in
special damages to the plaintiff, by passing off.‖
Black's Law Dictionary,
Eighth Edition, defines Puffing as under: -
―The expression of an
exaggerated opinion - as opposed to a factual misrepresentation - with the
intent to sell a good or service; Puffing involves expressing opinions, not
asserting something as a fact. Although there is some leeway in puffing goods,
a seller may not misrepresent them or say that they have attributes that they
do not possess.‖
27. The law relating to
disparaging advertisements is now well settled. While, it is open for a person
to exaggerate the claims relating to his goods and indulge in puffery, it is
not open for a person to denigrate or disparage the goods of another person. In
case of comparative advertisement, a certain amount of disparagement is
implicit. If a person compares its goods and claims that the same are better
than that of its competitors, it is implicit that the goods of his competitor's
are inferior in comparison. To this limited extent, puffery in the context of
comparative advertisement does involve showing the competitor's goods in a bad
light. However, as long as the advertisement is limited only to puffing, there
can be no actionable claim against the same. In the case of White v. Mellin,:
(1895) A.C. 154, the House of Lords while rejecting the contention of
disparagement observed as under:
―The allegation of a
tradesman that his goods are better than his neighbour's very often involves
only the consideration whether they possess one or two qualities superior to
the other. Of course ―better‖ means better as regards the purpose for which
they are intended, and the question of better or worse in many cases depends
simply upon one or two or three issues of fact. If an action will not lie
because a man says that his goods are better than his neighbour's, it seems to
me impossible to say that it will lie because he says that they are better in
this or that or the other respect. Just consider what a door would be opened if
this were permitted. That this sort of puffing advertisement is in use is
notorious; and we see rival cures advertised for particular ailments. The Court
would then be bound to inquire, in an action brought, whether this ointment or
this pill better cured the disease which it was alleged to cure - whether a
particular article of food was in this respect or that better than another.
Indeed, the Courts of law would be turned into a machinery for advertising
rival productions by obtaining a judicial determination which of the two was
the better.‖
28. The above decision
was further explained by the Chancery Division in the case of De Beers Abrasive
Products Ltd. and Others v. International General Electric Co. of New York Ltd.
and Another: 1975 (2) All ER 599, wherein while considering an allegation of
false advertising causing injury to a rival traders group, the court observed
as under:-
―the law is that any
trader is entitled to puff his own goods, even though such puff must, as a
matter of pure logic, involve the denigration of his rival's goods........ ―The
best tailor in the world,‖ ―The best tailor in this town,‖ and ―The best tailor
in this street,‖ none of the three committed an actionable wrong ...... Where,
however, the situation is not that the trader is puffing his own goods, but
turns to denigrate those of his rival, then, in my opinion, the situation is
not so clear cut. Obviously the statement: ―My goods are better than X's‖ is
only a more dramatic presentation of what is implicit in the statement: ―My
goods are the best in the world.‖ Accordingly, I do not think such a statement
would be actionable. At the other end of the scale, if what is said is: ―My goods
are better than X's, because X's are absolute rubbish,‖ then it is established
by dicta of Lord Shand in the House of Lords in White v. Mellin [1895] A.C.
154, 171, which were accepted by Mr. Walton as stating the law, the statement
would be actionable.‖
29. Thus, as long as
claims made in an advertisement are considered only as puffery, no interference
with the same by the courts would be warranted. This is for a simple reason
that puffing involves expressing opinions and are not considered as statements
of fact which can be taken seriously. As puffery is neither intended to make a
representation as to facts nor is considered as such by the target audience.
The advertisement involving puffery, thus, cannot be stated to be
misrepresenting facts. It is common for advertisements to make extravagant and
exaggerated claims in relation to goods and services. It is expected that an
advertiser would embellish the goods and services that are advertised and such
puffery is neither expected to be nor is taken seriously by any average person.
This was also observed by the Chancery Division in De Beers Abrasive Products
Ltd. (supra) as under:-
―In other words, in the
kind of situation where one
expects, as a matter of
ordinary common experience, a person to use a certain amount of hyperbole in
the description of goods, property or services, the courts will do what any
ordinary reasonable man would do, namely, take it with a large pinch of salt.‖
30. Having stated the
above, it is equally well settled that a trader is not entitled to denigrate or
defame the goods of his competitor's, while comparing his goods with that of
the other traders. In comparative advertising, the comparing of one's goods with
that of others and establishing the superiority of one's goods over that of
others is permissible, however, while doing so, one is not allowed to make a
statement that the goods of others are bad, inferior or undesirable as that
would amount to defaming or denigrating the goods of other's, which is
actionable. In the case of Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd.
& Anr.: 167 (2010) DLT 278 (DB), a Division Bench of this Court reviewed
the propositions on comparative advertisement as held by the Calcutta High
Court in the case of Reckitt & Colman of India Ltd. v. M.P. Ramchandran and
Anr.,: 1999 (19) PTC 741 and held as under:-
―23. Finally, we may
mention that Reckitt & Colman of India Ltd. v. M.P. Ramchandran and
Anr.,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.‖
31. There is no dispute
as to the principles as enunciated in Dabur India Limited (supra) and it is
common ground between the appellants as well as the respondent that the present
case must be adjudged on the principles as referred in that case.
Discussion regarding
multiple meaning rule
32. Although, there is
no controversy regarding the law on disparagement, there has been much debate
with respect to the applicability of multiple meaning rule to the facts of the
present case. The learned counsel for the appellants has relied upon the
decision in Ajinomoto Sweeteners Europe SAS (supra). In that case, the claimant
company manufactured and sold aspartame, an artificial sweetener. A super
market chain selling its own brand of health foods packaged some of its
products in packaging which carried the following message ―no hidden nasties‖
together with a legend reading ―no artificial colours or flavours and no
aspartame‖. The claimant therein contended that the message on the packaging
indicated that aspartame was potentially harmful or unhealthy and was something
which health conscious consumers would avoid. Tugendhat J (Trial Court) considered
the meaning of the words used on the packaging and concluded that the following
meanings were possible A: That aspartame is harmful or unhealthy. B: That there
is a risk that aspartame is harmful or unhealthy. C: That aspartame is to be
avoided. D: That these foods were for customers who found aspartame
objectionable. The meaning A was rejected outrightly. Meaning C was found to
add nothing to meaning B and was also, therefore, not relevant. After having
concluded that meanings B and D were both plausible, the Judge applied the
single meaning rule and meaning D was adopted as the same was inoffensive while
meaning B would convey a message disparaging aspartame. The said decision was
carried in an appeal which was considered by the Court of Appeal in Ajinomoto
Sweeteners Europe SAS (supra). The Court traced the development of law in this
regard. Earlier, the view held was that words were always to be construed in
the most inoffensive sense reasonably possible. However, this practice
subsequently gave way to the rule that the words and expressions were to be
understood ―according to the general and natural meaning, and agreeable to the
common understanding of all men‖. The Court of Appeal also noted that Levinz J
in Naben v. Miecock: (1683) Skin. 183, explained this rule by holding that the
words must be understood ―in their natural, genuine and usual sense and common
understanding, and not according to the witty constructions of lawyers, but
according to the apprehension of by- standers. The Court of Appeal held that
the single meaning rule is not to be imported into the tort of malicious
falsehood and further held as under:-
33. But where it is
capable of being applied, as it is in the present claim, the rule is productive
of injustice. On the judge's unchallenged findings, the meanings which
reasonable consumers might put on the claimant's health-food packaging include
both the damaging and the innocuous. Why should the law not move on to proof of
malice in relation to the damaging meaning and (if malice is proved) the
consequential damage without artificially pruning the facts so as to presume
the very thing -- a single meaning -- that the judge has found not to be the
case?
34. I do not accept that
doing this will make trials of malicious falsehood claims unwieldy or
over-complex. This is not because these claims are always tried by a judge alone:
the experience of common law judges is that juries are on the whole very good
at assimilating and applying sometimes complicated directions. It is because it
makes the trial of the issues fairer and more realistic. Instead of (as here)
denying any remedy to a claimant whose business has been injured in the eyes of
some consumers on the illogical ground that it has not been injured in the eyes
of others, or alternatively (and Mr Caldecott's case necessarily involves this)
giving such a claimant a clear run to judgment when in the eyes of many
customers the words have done it no harm, trial of plural meanings permits the
damaging effect of the words to be put in perspective and both malice and (if
it comes to it) damage to be more realistically gauged.
35. For these reasons I
would hold that the single meaning rule is not to be imported into the tort of
malicious falsehood.
33. The multiple meaning
rule by itself is not determinative in a case of malicious falsehood. The
multiple meaning rule has to be applied in conjunction with determining the
intent of the person against whom a claim of malicious falsehood is launched.
If the statements made are honest and without any malintent then it is obvious
that a single meaning rule would be applicable and the meaning which is
inoffensive would be considered over offensive ones. This was also held in the
case of the Lait v. Evening Standard Ltd.: [2011] 1 W.L.R. 2973, wherein it was
held as under:-
The first question is
whether the single meaning rule, as explained by Diplock LJ in Slim v Daily
Telegraph Ltd [1968] 2 QB 157 , 171-174, and as discussed more recently by
Sedley LJ in Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497,
applies where the defence is one of honest comment. In my view, it does. First,
given the rationale for the rule in the field of defamation (which has been
affirmed in Charleston v News Group Newspapers Ltd. [1995] 2 AC 65 , 71-72), it
is a little hard to see why, as a matter of principle, it should not apply when
the court is assessing a defence of honest comment. Secondly, it appears to me
that it would be inconvenient, particularly if the case was being tried by a
jury, if the single meaning rule applied in a defamation trial for some
purposes, but not for others. Thirdly, a number of authorities support this
conclusion: see Merivale v Carson 20 QBD 275 , 279, 281 and 282, and Burstein v
Associated Newspapers Ltd [2007] 4 All ER 319, paras 7-8. I also agree with
Laws LJ that the approval in the Charleston case [1995] 2 AC 65 of Diplock LJ's
judgment in the Slim case appears to support this conclusion.‖
34. However, in the
event, it is found that the intent itself is to convey the meaning which is
disparaging then merely because an innocuous meaning is available, the action
by an aggrieved party would not be frustrated. Thus, if a person wilfully and
intentionally uses a disparaging expression and puts out an advertisement which
can, plausibly, be construed as disparaging the goods and services of the other
and the intention of putting out that advertisement is to seek benefit from
making disparaging statements against competitor's goods, it would hardly be
just or fair to afford such party the defence that the advertisement could
also, possibly, be construed in an innocuous manner which is not harmful.
35. The learned counsel
for the respondent has advanced his contentions in respect of the multiple
meaning rule on the fundamental premise that it is mutually exclusive to the
test, as to the inference drawn by an average reasonable man reading or viewing
the advertisement. However, this in our view is erroneous as applying the
multiple meaning rule does not, by implication, exclude the need to examine as to
how the advertisement is viewed by an average reasonable person. It is now well
settled that in order to examine the question, whether an advertisement is
misleading or whether the same disparages the goods/services of another or
leads a viewer to believe something which is not true, it must be examined as
to how the same is perceived by an average reasonable man. But we do not think
that in order to examine how a reasonable man views an advertisement, all
perceptions except one must be discarded. While determining how an
advertisement is viewed by a reasonable person, in some cases, it may be
necessary to examine whether an average reasonable person could view the
advertisement in a particular manner, even though another reasonable view is
possible. We do not think, it is necessary that all reasonable views except one
must be discarded while determining the question as to how an advertisement is
perceived. The presumption that there must be a single reasonable man militates
against the principle that two or multiple acceptable views may be adopted by
different persons who are fully qualified to be described as reasonable
persons.
36. The decision in
Tesla Motors (supra) also does not support the view that multiple meaning rule
has not been followed in United Kingdom as was contended by the learned counsel
for the respondent. The facts in that case related to an action that was
instituted for claiming damages for libel, for malicious falsehood and for an
injunction to prevent further publication of statements which was a subject
matter in those proceedings. Tesla Motors Limited and Tesla Motors Inc.
(referred to as ‗Tesla') were manufacturers of motor vehicles and had made
available two vehicles for a review by a well-known television programme ―Top
Gear‖ which was broadcast by the respondent. In one episode of the programme
that was telecast, the cars (Roadsters) that were made available by Tesla were
shown to be tested. The tests were designed to push the car to the limits of their
performance in terms of acceleration, straight-line speed, cornering and
handling. The presenter of the programme, a well-known personality Jeremy
Clarkson, who was filmed as driving one of the cars around the track, made
various comments regarding the motor vehicle. Some of which were complementary,
however, some of the comments were not. Tesla took an exception to two portions
of the film including one portion which is described as under:-
―..begins with
Mr.Clarkson praising the car and saying:
‗This car, then, really
was shaping up to be something wonderful. But then....'At this point there is
the artificial sound of a motor slowing down and stopping, followed by a shot
of Mr. Clarkson sitting in what has become a stationary vehicle saying: ‗Oh! ...
Although Tesla say it will do 200 miles, we worked out that on our track it
would run out after just 55 miles and if it does run out, it is not a quick job
to charge it up again.' There follows a shot of people pushing one of the
Roadsters into the hangar and Mr. Clarkson plugging in the cable in order to
re-charge it.‖ It was contended on behalf of the Tesla that the statement,
―although Tesla say it will do 200 miles, we worked out that on our track it
would run out after just 55 miles‖, was defamatory as it meant that Tesla had,
recklessly, grossly mislead potential purchasers by claiming that its vehicles
had a range of 200 miles, while in fact, the range of the vehicle was only
about 55 miles. This contention was not accepted as the Court of Appeal held
that the statement made by the presenter in the programme related to the range
of the vehicle in test conditions. The Court further viewed the film to
ascertain the impression that it conveyed and held as under:-
―21. For the purposes of
the appeal I have watched the whole of the film a number of times. In my view
it was important to do so because, although the transcript with which the court
was provided is a helpful reminder of what was said and shown, it does not convey
the same impression as the film itself. One important matter which is vividly
conveyed by the film is the nature of the testing that was carried out by the
‗Top Gear' team, which involved violent acceleration (described as a ―drag
race‖), continuous high-speed driving at or near the limits of the car's
capability and heavy cornering. Testing of this kind is typical of ‗Top Gear',
as most viewers of the programme would know, but even a person viewing the programme
for the first time would immediately realise that the style of driving bears no
relationship to that which could be engaged in on a public road, even if the
car were to be driven quickly by normal standards. It was for this reason that
Mr. Caldecott Q.C. submitted that no reasonable person could draw the inference
that the car's range undernormal, albeit quick, driving conditions was only 55
miles or that in claiming that it had a range of 200 miles Tesla had
dishonestly set out to mislead the public.
22. At the heart of this
part of the case is the allegation that the statement contained in the film
meant that the true range of the Roadster was in the order of 55 miles. That is
important, because it is the extent of the discrepancy between the claimed
range of 200 miles and the alleged true range of about 55 miles that supports
what is said to be the implied assertion of dishonesty. Indeed, so great is the
discrepancy that, if it were true, it is difficult to see what other inference
could reasonably be drawn. However, it is clear from what the viewer sees of
the tests carried out on the car that they bear no relationship to driving on
public roads, or at any rate to the kind of driving on public roads of a kind
on which a manufacturer could possibly base an estimate of range. It would be
obvious to a reasonable viewer, therefore, that the range derived from track
testing was not in any meaningful sense the car's ―true range‖ and he would
therefore have no reason to infer that by claiming a range of 200 miles Tesla had
set out to mislead.
37. It is apparent from
the above that this was not a case where the Court was presented with a set of
facts where two meanings were possible. The multiple meaning rule is applied
only in cases where two meanings are plausible and thus there was no scope of
applying multiple meaning rule in Tesla Motors (supra).
38. Our attention was
drawn to paragraph 19 of the aforesaid judgment in Tesla Motors (supra) which
reads as under:-
―19. It was common
ground that the judge applied the correct principles for the purposes of
determining what meanings relating to the Roadster's range the programme was
capable of bearing. They were derived from Skuse v Granada TV [1996] EMLR 278
and Jeynes v News Magazines Ltd [2008] EWCA Civ 130 (unreported) and are
summarised as follows in paragraph [10] of his judgment:
(1) The court should
give to the material complained of the natural and ordinary meaning which it
would have conveyed to the ordinary reasonable reader reading the article or
viewing the programme once.
(2) The hypothetical
reasonable reader (viewer) is not naïve but he is not unduly suspicious. He can
read between the lines. He can read in an implication more readily than a
lawyer and may indulge in a certain amount of loose thinking. But he must be
treated as being a man who is not avid for scandal and someone who does not,
and should not, select one bad meaning where other non-defamatory meanings are
available. (Emphasis added.)
(3) While 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.
(4) The reasonable
reader does not give a newspaper item the analytical attention of a lawyer to
the meaning of a document, an auditor to the interpretation of accounts, or an
academic to the content of a learned article.
(5) In deciding what
impression the material complained of would have been likely to have on the
hypothetical reasonable reader the court is entitled (if not bound) to have
regard to the impression it made on them.
(6) The court should not
be too literal in its approach. The above list was broadly followed by the
Court of Appeal in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14],
save that it added the important point that the hypothetical reader is taken to
be representative of those who would read the publication in question.
39. We do not think that
there is any quarrel with the principles as enunciated in the above referred
passage from the decision in Tesla Motors (supra). While determining as to how
average men view an advertisement, it cannot be assumed that the average men
tend to choose a derogatory meaning where other simple non-disparaging meanings
are available. However, in cases where the advertisement presents an impression
which any reasonable person could perceive as being derogatory or defamatory or
disparaging, the goods/services of another person then certainly it would not
be reasonable to discard that view only because certain other meanings are also
possible. The aid to the multiple meaning rule must be taken only in such
circumstances where two plausible meanings are possible and it is probable that
certain viewers (readers) would adopt a view which is disparaging. In the
present case, it is not necessary for us to delve into these contentions much
further as, in our view, the facts of the present case do not suggest the
dilemma of two divergent plausible views.
Impugned TVC
40. Having briefly
outlined the principles of law that are applicable, we may proceed to examine
the impugned advertisements.
41. The impugned TVC
starts with a close up of a signage which reads as ―PREVENTIVE CAVITY TEST‖.
The font size of the word ―PREVENTIVE‖ is significantly smaller than the font
size of the words ―CAVITY TEST‖. The advertisement thereafter shows two
children with their respective mothers standing behind them. The children are
shown brushing their teeth. While one child is shown to be brushing with
Colgate ST (hereinafter referred to as ‗Colgate child'). The other child is
shown to be brushing with Pepsodent GSP (hereinafter referred to as ‗Pepsodent
child'). The children seem to be participating in some sort of an experiment
which relates to the effectiveness of the two Toothpastes. The packaging of both
Colgate ST and Pepsodent GSP are clearly visible in the TV Commercial. After
the children finish their brushing, the Colgate child shows his teeth to the
dentist and invites him to test his teeth. In conformity with the storyline,
this can only mean the Preventive Cavity Test which was indicated at the
commencement of the commercial. The dentist does not conduct the test and asks
the Colgate child to go, on which the Colgate child shows his surprise and
states ―Aapne hi to bola tha, Cavity Test Hoga‖ (freely translated means ―you
only said that there would be a Cavity Test‖). The dentist then explains to the
Colgate child ―Asli Test Ab Nahi, Tab Karenge Jab Cavity Ka Khatra Zyada Ho‖
(freely translated means ―the real test would not be now, but would be done
subsequently when the danger of cavity is higher').
42. The next shot of the
commercial depicts the children four hours later and this is indicated by a
Super appearing on the left hand side of the frame simultaneously on the right
hand side of the frame a clock is seen rapidly moving from 8 to 12. This
clearly depicts the passage of time of four hours. The next set of frames depict
both the 'Colgate' and 'Pepsodent' children with their respective lunch boxes
and at that moment, the dentist appears alongwith the respective mothers of the
two children. The dentist takes out some sort of hand held scanning device
which is depicted as a tool to examine the teeth of the two children. The next
frame is a split frame where the light emanating from the scanning device is
shown to pan on the teeth of the two children. On the left hand side (Colgate
Child's side of the screen) the product Colgate ST is clearly visible and which
identifies that the Colgate child has used Colgate ST. Similarly, on the right
hand side (Pepsodent Child's side of the screen) Pepsodent GSP is visible. A
screen shot of this frame is reproduced herein below:-
43. The next frame is
again a split screen where alien looking creatures depicting Triclosan as
soldiers are shown. The Triclosan soldiers pertaining to Colgate are shown in
red and Triclosan soldiers pertaining to Pepsodent are shown in blue. The right
hand side frame also bears the caption 100% germ attack power, below the
Pepsodent GSP tube. The expression "INDEX 100%" is indicated at the
bottom of both the split frames. A screen shot of the frames is reproduced
herein below:-
The right hand side
split screen expands rapidly and the term 100% in the caption "100% germ
attack power" is also shown increasing to 130%. Simultaneously, the
Colgate side of the screen diminishes in proportion. A screen shot of the
frames is reproduced herein below:-
At this stage, the
following super appears at the bottom of the screen:-
―Creative Visualization
of the Action of Triclosan on Cavity causing Germs. New Pepsodent Germicheck enhances
delivery of Triclosan in the mouth. Claim based on In-Vivo study where Germ
Attack Power refers to amount of Triclosan remaining in mouth, 4 hours after
brushing, where COLGATE STRONG TEETH is indexed at 100% and PEPSODENT
GERMI CHECK is Brush
twice daily.
The impugned TVC then
ends with a statement ―Naya Pepsodent Germicheck Colgate Ke Mukable Germ Check
Power‖ (freely translated means ―new Pepsodent Germ check gives germ check
power in comparison with Colgate‖).
44. It is contended on
behalf of the appellants that the impugned TVC is per se disparaging the
product and goodwill of the appellants. The test which is shown to be conducted
is a cavity test and it is contended that no such test, in fact, exists. The
impugned TVC is stated to depict the mother of the Colgate child as wearing a
worried and a concerned look in contradiction to the mother of the Pepsodent
child who appears as being confident and satisfied. The expression of the
Pepsodent Child's mother indicates superiority, which it is contended, is meant
to show the superiority of Pepsodent GSP. It is contended that the impression
that is conveyed is that Colgate child's mother is circumspect about Colgate
ST. Much emphasis was laid by the learned counsel for the appellants on the
depiction of the triclosan soldiers, while triclosan soldiers in blue, which
pertain to Pepsodent GSP, are shown to be increasing and subsequently occupying
the entire screen, the triclosan soldiers shown in red, pertaining to Colgate,
are shown to be diminishing. It is contended that this depiction is mischievous
as Triclosan is not a live organism and does not multiply. The learned counsel
for the appellants has also sought to attribute meaning to the word ―ATTACK which
is exclaimed by the child after the cavity test.
45. The examination of
the impugned TVC frame by frame and its detailed analysis of the words used or
the expressions of the mothers and attributing a message to them, is in our
opinion, not the correct way to view any advertisement. The advertisement must
be viewed in its entirety and it is not necessary to dissect each word or
expression. In the case of McDonald's Hamburgers Ltd v. Burgerking (UK) Ltd.:
[1986] F.S.R. 45, the Chancery Division stressed that the advertisement should
be considered as a whole in the case of disparagement and held as under:
―Advertisements are not
to be read as if they were some testamentary provision in a will or a clause in
some agreement with every word being carefully considered and the words as a
whole being compared.‖
46. The relevant
question to be asked is what is the story line of the impugned TVC, the intent
of the advertiser and the message that it leaves with the consumers/prospective
consumers. In the case of Pepsi Co., Inc. and Ors. v. Hindustan Coca Cola Ltd.
and Anr.: 2003 (27) PTC 305 (Del.), a Division Bench of this Court had held
that factors which are required to be considered while deciding the question of
the disparagement are (1) Intent of the commercial (ii) Manner of the
commercial (iii) Story line of the commercial and the message sought to be
conveyed by the commercial. These factors were further clarified by a Division
Bench in the case of Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. &
Anr. (supra) wherein the court held as under:-
(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.
47. The learned Single
Judge has examined the impugned TVC in detail and has come to a conclusion that
the impugned TVC does not depict the Colgate child in any bad light or points
out any defect in Colgate ST. Although, it had been contended on behalf of the
appellants that the mother of the Colgate child looked worried and concerned
and the teeth of the Colgate child did not look as well formed as that of the
Pepsodent child, the learned Single Judge after examining the frames has not
found any such derogatory representation and has come to a conclusion that
impugned TVC cannot be held to be disparaging Colgate ST. A comparative advertisement
is permissible and it is open for a trader to compare his goods and services
with that of his competitors and, if true, also proclaim his goods/services as
better than those of competitors. However, he cannot proclaim that the goods of
competitors are bad or make any disparaging statements about the goods/services
of his competitors. We have also viewed and examined the impugned TVC and,
without going into the truthfulness and accuracy of the message conveyed by the
impugned TVC, it is not possible to conclude that the advertisement per se
denigrates or slanders Colgate S.T. It is not possible to come to a conclusion
that the Colgate child has been shown in a bad light or to be suffering from
any dental ailment and in that view of the matter while the impugned TVC does
proclaim Pepsodent GSP to be 130% better than Colgate, it cannot be stated that
the impugned TVC per se denigrates Colgate ST.
48. Having stated the
above, it would also be necessary to examine the intent and the overall effect
of the advertisement. Following the decision in Dabur India Ltd. v. Colortek
Meghalaya Pvt. Ltd. & Anr. (supra), it is also important to examine the
storyline and the message that the impugned TVC conveys to an average person
who is a consumer or a prospective consumer of the products that are
advertised. An average person cannot be assumed to be gullible and is presumed
to have the ability to ignore puffery. However, an average viewer is likely to
accept the factual representations that are conveyed by an advertisement if the
same are conveyed as serious statements of fact and not as hyperbole. An
average viewer does not analyse an advertisement and is likely to be receptive
to the message that the advertisement projects. A similar view has been
articulated by a Single Judge of this Court in Glaxo Smithkline Consumer
Healthcare Limited and others v. Heinz India Private Limited and another: I.A.
No.15233/2008 in CS (OS) No.2577/2008, Decided on 12.11.2010, wherein this
court held as under:-
―An application of the
principles discussed previously in this judgment, would mean that the Court has
to, as far as possible, consider the overall effect of the advertisements; a
minute dissection of each term, or phrase is uncalled for, and the stand point
from where the Court should judge the nature of the alleged disparagement
should be not of the aggrieved trader, but the reasonable, or average consumer,
who is conscious of trading rival's propensities to puff and exaggerate their
products. At the same time, this reasonable or average consumer is likely to be
influenced by factual assertions made in such advertisements. Specific
assertions, or claims, in advertisements are more likely impact directly, as
contrasted with vague and general claims.‖
49. If one considers the
question, what is the message that is conveyed by the impugned TVC, we have
little doubt that any reasonable person who views the impugned TVC would
receive the message that Pepsodent GSP is 130% more effective than Colgate ST
insofar as combating cavities is concerned. Certain consumers who are not aware
of the appellants products in premium segment are also likely to conclude that
Pepsodent GSP is better than the Colgate toothpastes in view of the voice-over
at the end of the impugned TVC. The entire theme of the impugned TVC is conduct
of a cavity test (the expression ―preventive‖ only appears, in a smaller font
size, on the banner at the commencement of the impugned TVC and is not referred
to thereafter). While the Pepsodent child clears the test with flying colours
apparently the Colgate child does not fare that well. Any reasonable person
viewing this advertisement would take with him the message that Pepsodent GSP
is significantly better in combating tooth decay and oral germs/bacteria than
Colgate/Colgate ST. A scientific basis is sought to be supplied for the
expression ―130% better, thus this cannot be ignored as hyperbole. The
erroneous usage of percentage as a measure may be ignored but the statement
that Pepsodent is better that Colgate in respect of combating cavity causing
germs is, undoubtedly, a statement of fact. The message that Pepsodent GSP is
better than Colgate ST in combating tooth decay (cavities) is the message that
the impugned TVC delivers and this is a serious representation of fact. Thus,
the question that requires to be addressed is whether this claim by the
respondent is truthful or not.
50. The entire basis of
the claim being made by the respondent is that the In vivo and In vitro test
conducted by independent laboratories have found that concentration of
triclosan in dental plaque, after four hours of brushing, is higher where
Pepsodent GSP has been used in comparison with cases where Colgate ST is used.
These findings are also disputed. However, notwithstanding the dispute, the
question which arises is, does this parameter by itself lead to an inference
that Pepsodent GSP is more efficient in combating tooth decay and cavities in
comparison with Colgate ST. The co-relation between higher concentration of
Triclosan after four hours of usage of Pepsodent GSP as claimed by the
respondent and cavity prevention qualities of the two compared products is vital
to determine the truthfulness of the impugned TVC. In the event, it is found
that this co- relation is illusory and a higher concentration of Triclosan in
dental plaque does not have a proportionate impact in combating tooth decay or
germ build up or that Colgate ST has certain other ingredients in addition to
Triclosan which also prevent tooth decay then clearly the message sent out by
the impugned TVC would be untruthful and thus impermissible. To illustrate this
point, let us take a hypothetical case of comparison between two motor vehicle
manufacturers. While one manufacturer may use an engine of a higher cubic
capacity, the other manufacturer, while using an engine of a lower capacity may
tune it differently and employ a better fuel injection system which, in fact,
leads to delivering more power to the wheels in comparison to the vehicle
employing the larger capacity engine. While it would be appropriate for the car
manufacturer using a larger engine to put out a comparative advertisement
indicating that the engine used in vehicles manufactured by him were of a
higher capacity than the engine used by other car manufacturer, it would be
completely misleading if the former car manufacturer would on the basis of a
higher capacity engine proclaim that the vehicles manufactured by him were more
powerful and faster than that of his competitor. The essential message conveyed
by the advertisement must be truthful and given the fact that in a case of
comparative advertisement where the reputation of the products/services of
another dealer/person is at stake, the truthfulness of the essential message
should be strictly tested.
51. In the case of Lakhanpal
National Ltd. v. M.R.T.P. Commission: (1989) 3 SCC 251, the Supreme
Court explained that an advertisement may contain inaccurate facts yet convey
an essentially truthful message. On the other hand, an advertisement may be
entirely accurate on facts but convey a completely misleading message. In that
case, advertisements were issued by a dry cell battery manufacturer who was
manufacturing and dealing in power cells under the brand name ―Novino. The
advertisements announced that Novino batteries were manufactured in
collaboration with National Panasonic of Japan using National Panasonic
techniques. In fact, there is no company known as National or Panasonic. The
same were brands names of Mitsushita Electric Industrial Co. Ltd. Technically
viewed, the advertisement contained inaccurate facts, however, the Supreme
Court held that viewed from the perspective of the message that was being
communicated, the same could not be held to be untrue. This was explained by
the Supreme Court in the context of unfair trade practice as under:-
7. However, the question
in controversy has to be answered by construing the relevant provisions of the
Act. The definition of ―unfair trade practice‖ in Section 36-A mentioned above
is not inclusive or flexible, but specific and limited in its contents. The
object is to bring honesty and truth in the relationship between the
manufacturer and the consumer. When a problem arises as to whether a particular
act can be condemned as an unfair trade practice or not, the key to the
solution would be to examine whether it contains a false statement and is
misleading and further what is the effect of such a representation made by the
manufacturer on the common man? Does it lead a reasonable person in the
position of a buyer to a wrong conclusion? The issue cannot be resolved by
merely examining whether the representation is correct or incorrect in the
literal sense. A representation containing a statement apparently correct in
the technical sense may have the effect of misleading the buyer by using tricky
language. Similarly a statement, which may be inaccurate in the technical
literal sense can convey the truth and sometimes more effectively than a
literally correct statement. It is, therefore, necessary to examine whether the
representation, complained of, contains the element of misleading the buyer.
Does a reasonable man on reading the advertisement form a belief different from
what the truth is? The position will have to be viewed with objectivity, in an
impersonal manner. It is stated in Halsbury's Laws of England (4th Edn., paras
1044 and 1045) that a representation will be deemed to be false if it is false
in substance and in fact; and the test by which the representation is to be
judged is to see whether the discrepancy between the fact as represented and
the actual fact is such as would be considered material by a reasonable
representee. ―Another way of stating the rule is to say that substantial
falsity is, on the one hand, necessary, and, on the other, adequate, to
establish a misrepresentation‖ and ―that where the entire representation is a
faithful picture or transcript of the essential facts, no falsity is
established, even though there may have been any number of inaccuracies in
unimportant details. Conversely, if the general impression conveyed is false,
the most punctilious and scrupulous accuracy in immaterial minutiae will not
render the representation true‖; Let us examine the relevant facts of this case
in this background.
52. The disclosure of
the basis on which the message of the impugned TVC is predicated (i.e. the
Super indicating that basis to be In vivo study) would not be an adequate
defence if the message conveyed by the impugned TVC advertisement is found to
be untruthful.
53. We find that this
aspect of the matter has not been considered by the learned Single Judge. Even
before us, arguments on this aspect were also advanced at the stage of
rejoinder and the respondent did not have an occasion to contest the same. In
these circumstances, we consider it appropriate if the matter is remanded to
the learned Single Judge for considering this aspect of the matter afresh,
based on the material that may be produced by the appellant in support of its
contentions.
54. We have refrained
from examining whether the essential message which is conveyed by the impugned
TVC is untruthful or inaccurate as the same had not been placed before the
learned Single Judge. However, we must add that in the event the learned Single
Judge, on the basis of the material placed by the parties, comes to a
conclusion that the appellant's contention that higher concentration of
Triclosan as claimed by the respondent does not, prima facie, establish that
Pepsodent GSP is superior in its efficacy to combat tooth decay in comparison
with Colgate ST then in such event the telecast of the impugned TVC would be
liable to be interdicted as the balance of convenience is squarely in favour of
the appellants. In the event that impugned TVC is found to be, prima facie,
misleading and inaccurate, it would follow that the appellant's contention that
they must be protected against the injury being caused to their reputation and
goodwill is liable to be accepted. Restraining the telecast of the impugned TVC
would not result in any significant damage or injury to the respondent even if,
subsequently, the claim against them is not established. As indicated earlier,
in our view, the balance of convenience in this case would lie squarely in
favour of the appellants provided they are able to, prima facie, establish that
the message of the impugned TVC, as discussed hereinbefore, is not accurate or
is misleading or untruthful.
55. We may add that the
appellants have a product in their portfolio, Colgate Total, which, admittedly,
delivers a sustained release of triclosan. Admittedly, the concentration of
triclosan in dental plaque, after four hours of brushing with Pepsodent GSP,
does not exceed the concentration of Triclosan where Colgate Total is used. The
learned counsel for the respondent has explained that Colgate Total is a
product in the premium segment and the comparative advertisement is not in
respect of Colgate Total. In this view of the matter, the voiceover at the end
of the impugned TVC which proclaims Pepsodent GSP to be better than Colgate is
indisputably inaccurate and prima facie mischievous. In this view of the
matter, this voiceover is liable to be deleted altogether or modified. The
Super in the impugned advertisement which explains the basis of indexing of ,
is alleged to be not visible when the advertisement is viewed on an ordinary
Television Set, this aspect has not been seriously contested by the respondent.
In the event, the super is not visible on ordinary television sets, the
impugned TVC would also require to be modified to ensure that the super is
clearly visible to all viewers including those that view the impugned TVC on
ordinary television sets.
Impugned print
advertisement
56. A full page
advertisement that was published in the Hindustan Times showed a hand gripping
a product Pepsodent GSP and below which was a caption ―IT'S TIMES TO ATTACK.
The lower half of the page of the impugned print advertisement depicted a
comparison between Colgate ST and Pepsodent GSP and the caption boldly stated
read as ―PEPSODENT - NOW BETTER THAN COLGATE STRONG TEETH. DELIVERS GERM ATTACK
POWER.‖ Lower half of the impugned print advertisement is split in two parts,
one part is the Pepsodent side which is in a blue background. The other part is
the Colgate side which is in a red background. Each part has picture of a
child. The child on the Pepsodent side (referred to as the ―Pepsodent Child‖)
is depicted holding a spoon and is in the process of consuming a visibly
appetising dessert (a slice of cake or pastry which has a liberal dose of
chocolate syrup) which is placed before him. The product Pepsodent GSP is
clearly visible on the Pepsodent side of this advertisement. On the Colgate
side, the child (referred to as the ―Colgate Child‖) is shown to be unhappy.
Although, a plate of dessert is before him, he is not shown to be consuming the
same but is shown as having placed his clenched fist on his jaw clearly
depicting certain amount of discomfort, obviously, on account of a dental
problem. The dessert placed before the child is also not as appetising. On the
centre of the lower half of the page is a depiction of a tooth, which on the
Pepsodent side is shown as covered in green spots barring one spot which is
shown in white. The Colgate side of the tooth is depicted having red and white
spots. The caption on the tooth states ―4 Hours After Brushing‖. On the lower
portion of the impugned print advertisement, a picture of Pepsodent GSP
alongwith the caption ―Non-Stop Attaaaack! on cavity causing germs‖ is printed.
The advertisement contains a Super which is in fine print and reads as under:-
Creative Visualization
of the Action of Triclosan on Cavity causing Germs. New Pepsodent Germicheck
enhances delivery of Triclosan in the mouth. Claim based on In-Vivo study where
Germ Attack Power refers to amount of Triclosan remaining in mouth, 4 hours
after brushing, where COLGATE STRONG TEETH is indexed at and PEPSODENT
GERMI CHECK is 130%.
Brush twice daily.The lower half of the impugned print advertisement is
reproduced herein below:-
57. The tests to
determine whether an advertisement is disparaging or misleading as are
discussed in respect of the impugned TVC are equally applicable to the impugned
print advertisement. One has to only look at the advertisement to realise that
the visual story that is conveyed is that while the Pepsodent child is happy,
healthy and can enjoy his dessert, the child using Colgate is uncomfortable and
clearly unable to consume the dessert, presumably on account of a dental
ailment toothache which is depicted by the child holding his jaw on a clenched
fist.
58. The learned counsel
for the appellants has made submissions as to how the colour scheme and certain
finer aspects of the advertisement are all designed to disparage Colgate ST and
has also handed over a glossy print of the advertisement alongwith comments
pointing out as to how the Pepsodent GSP is shown not only to be superior than
Colgate ST but also depicting that use of Colgate would cause discomfort to its
user. We do not find it necessary to examine each of those comments separately,
as in our view, an advertisement must be viewed in the perspective of the
impression that is obtained by an average consumer/prospective consumer who
views/reads the advertisement. Viewed from the perspective of an average person
with imperfect recollection, we are in no manner of doubt that the
advertisement not only conveys an impression that use of Colgate would not be
as effective as Pepsodent but also conveys an impression that use of Colgate ST
instead of Pepsodent GSP would result in causing harm and discomfort to its
consumers. This is clearly the essential message of the visual story depicted
by juxtaposing the two children, one happy and enjoying his dessert and the
other who is in discomfort and unable to consume the dessert placed before him
on account of a dental ailment. Given the fact that advertisements are not
analysed carefully but are usually glanced over by most readers. It is apparent
that a consumer who glances at this advertisement would, surely carry the
impression as stated above. Thus, in our view, the impugned print advertisement
is prima facie disparaging of the appellant's goodwill and its product Colgate
ST.
59. In our view, even
if, we assume that the representation that Pepsodent is more effective in
combating germs, 4 hours after brushing, in comparison with Colgate ST, is
correct even then, prima facie, the advertisement would be disparaging as it
also conveys the message that Colgate is ineffective and lacks the requisite
quality to maintain oral hygiene and combat tooth decay and its usage, as
depicted by the Colgate child, would result in the user ending up with a tooth
related ailment. As explained in Dabur India Ltd. v. Colortek Meghalaya Pvt.
Ltd. & Anr. (supra) a trader 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. In our view, this is
precisely what the impugned print advertisement conveys by its advertisement
theme and the visual story.
Conclusion
60. To sum up, in our
view, the impugned TVC cannot be stated to be per se disparaging Colgate ST.
However, the voice over at the end of the impugned TVC which states ―Naya
Pepsodent Germi Check Colgate Ke Mukable 130 pratishat Germ Attack Power‖
(freely translated means ―in comparison to Colgate New Pepsodent Germi Check
has 130% Germ Attack Power‖) is misleading and inaccurate. Thus, this statement
in the voiceover is directed to be deleted from the impugned TVC or at the
option of the respondent, may be suitably modified to refer only to Colgate ST
(Colgate Strong Teeth). The respondent is further directed to ensure that the
Super which reads as ―Creative Visualization of the Action of Triclosan on Cavity
causing Germs. New Pepsodent Germicheck enhances delivery of Triclosan in the
mouth. Claim based on In-Vivo study where Germ Attack Power refers to amount of
Triclosan remaining in mouth, 4 hours after brushing, where COLGATE STRONG
TEETH is indexed at 100% and PEPSODENT GERMI CHECK is 130%. Brush twice daily.‖
is clearly visible when the impugned TVC is viewed on any television set. The
matter is remitted to the learned Single Judge to consider afresh the aspect
whether the essential message conveyed by the impugned TVC is prima facie
truthful or misleading in the light of the observations made hereinbefore.
61. We further restrain
the respondent and or its agents from publishing the impugned print
advertisement or any other similar advertisement which disparages Colgate ST
(Colgate Strong Teeth) or any other product of the appellants.
62. The present appeal
and the application stand disposed of with the aforesaid directions. The
parties are left to bear their own costs.
VIBHU BAKHRU, J
BADAR DURREZ AHMED, J
DECEMBER 10, 2013
