Reckitt and Colman of India Ltd. v. M. P. Ramchandran and Ors.
The High Court of Calcutta
1999(19)PTC741(Cal)
Media Involved: Advertisements
Decided on: 24.08.1998
Barin Ghosh, J.
1. In the plaint the plaintiff has prayed, inter alia, for perpetual injunction restraining the defendants from further publishing the advertisements contained in Annexure NB' to the plaint or any other similar advertisement making disparaging reference to the plaintiff's Robin Liquid Blue. In the present application, the plaintiff has prayed for, inter alia, a temporary injunction of similar nature. On 1st February, 1996 the present application was moved before me ex parte, when I passed an order of injunction of the nature indicated above.
2. In support of the said Order I recorded the following reasons:-
"The plaintiff is the manufacturer of a whitener sold under the brand-name Robin Blue. The defendants are also manufacturing a whitener and selling their product under the brand-name Ujala. It is the case of the plaintiff that for the purpose of promoting the sale of Ujala the defendant are seeking to project as if the goods of the plaintiff are inferior to that of the defendants. I have been shown certain advertisements from which it appears that although the name of the plaintiff or the brand name of the plaintiff has not been mentioned in the container in which the products of the plaintiff are sold but the same has been specially shown and identified as "Blue". It further appears that similar advertisements have also been published even in to-day's newspapers. In those circumstances the plaintiff has filed this suit and has made this application seeking an ex parte ad interim order. The defendants in the matter of promoting sale of their products are free to take such steps as they may be advised but they cannot project their goods in such a way as to represent to the world at large that the goods of somebody else is inferior to theirs and thereby affect the market of that third party. It appears that the defendants have done the same by putting the advertisements which have been shown to the court by the learned counsel appearing on behalf of the plaintiff. In the event the defendants are permitted to carry on what they are doing today then there is every possibility of the market of the plaintiff's product losing its field which cannot be compensated in money and therefore the plaintiff has not only made out a prima facie case for an order of injunction as prayed for but such order of injunction is also necessary having regard to the balance of convenience and inconvenience. On the other hand if the defendants are restrained from diminishing the goodwill and repute as well as the effectiveness of the products of the plaintiff, the defendants will not suffer in any manner whatsoever."
3. The defendant no. 1 has allegedly made disparaging representations in regard to Robin Liquid Blue of the plaintiff by publishing the subject advertisements through defendant No. 2, who is the advertising agent of the defendant no. 1.
4. On 19th February, 1996 when the present application was taken up for hearing as Motion (New), the learned counsel appearing on behalf of the defendant no. 1 submitted that I should vacate the order passed by me on 1st February, 1996. In support of the said submissions the learned counsel for the defendant no. 1 contended that in law and on the facts as alleged in the plaint and in the petition, the plaintiff was not entitled to such an injunction. The learned counsel for the defendant no. 1 on that date also cited a few authorities on the subject. After hearing such submissions and the reply thereto given by the learned counsel appearing on behalf of the plaintiff, I retained the order dated 1st February, 1996 and refused to vacate the same and in support thereof gave the following reasons:-
"On 1st February, 1996, I passed an ad interim order in terms of prayer (a) of the petition, whereby and where under I restrained the respondents from publishing further advertisements as were publishing by them, which have been annexed as Annexure-B to the petition, or any other similar advertisement making disparaging representations of the petitioner's Robin Liquid Blue or any of the petitioner's products for the reasons recorded in the said order".
5. Mr. Gautam Chakraborty, appearing on behalf of the respondent had asked me to vacate the said order principally on two fold grounds, (1) the respondents have not in any way disparaged any of the products of the petitioner and (2) the respondents have stated that their goods are better than others, which they are entitled to, in the subject advertisements.
6. In support of his first contention Mr. Chakraborty submitted that in addition to the petitioner there are a large number of manufacturers of blue whitener and all of them or a large number of them use deep blue containers to pack their products for presenting the same to their customers. In support of such submission, Mr. Chakraborty produced in Court 7 or 8 containers of different manufacturers. All of them are deep blue in colour with white caps. Mr. Chakraborty also produced a container of the petitioner, which too is deep blue in colour with a white cap. None of the containers so produced by Mr. Chakraborty, except the container of the petitioner as produced by him, has in any way a resemblance with the container of blue whitener depicted in the advertisements, being the subject matter of these proceedings. Therefore, at this stage it will not be proper on my part, to accept the submission of Mr. Chakraborty that the respondents were projecting blue whitener in general in their advertisements and were not pointing out the blue whitener produced and sold by the petitioner alone.
7. It appeared to me upon a casual comparison of the container of the petitioner as produced by Mr. Chakraborty with the container of blue depicted in the subject advertisements that a person using petitioner' blue, which has been purchased by him in those containers, while looking at the concerned advertisements, will have one and the only conclusion that the respondents are highlighting Robin Liquid Blue of the petitioner and not other blue whitener manufactured by any other manufacturer. Further by describing in the concerned advertisements that the blue whitener depicted therein is price at Rs. 10/- the respondents in no uncertain terms have referred to Robin Liquid Blue manufactured and sold by the petitioner, since the price of the Blue whitener manufacture by others is much less than Rs. 10/-, which assertion of the petitioner has not been challenged at this stage by Mr. Chakraborty.
8. In support of his second contention Mr. Chakraborty relied on an unreported dictated order dated 30th September, 1994 passed by a learned single Judge of this Court in Suit No. 271 of 1994 (Chloride Industries Ltd Vs. The Standard Batteries Ltd., and ors.) In that case, the defendant has published an advertisements where they had shown a dark unlabelled battery and called it "Ex Idea", the learned Judge held that the respondents by that advertisement contended that their goods are better and newer and should be brought in preference to "Exide". In that unreported dictated order the learned Judge observed, I think rightly that if the goods are disparaged maliciously or with some other such intent to injure, and not by way of a fair trade rivalry, the same may be actionable Mr. Chakraborty next cited a judgement of the House of Lords in White Vs. Mellin, reported in 1895 AC 154. In that case the complaint was in regard to a notice attached with the product of the defendant which read as "The public are recommended to try Dr. Vance's prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered..." Looking at the said statement Lord Herschell L.C. at page 159 of the report observed "looking fairly at the language used and the meaning to be attributed to it, I am not satisfied that it has been shown that by means of this advertisement the defendant falsely disparaged the plaintiff's goods" and at page 160 of the Report observed "After all the Advertisement is of a very common description, puffing, it may be extremely and in an exaggerated fashion, these particular goods, Vance's good....... the object of the publication must be to injure another person, and that the advertisement is not published bona fide merely to sell the advertiser's own goods...." and at page 161 of the report observed "There is nothing to show that the object of the defendant was other than to puff his own goods and so sell them...." and at page 164 of the report observed "But, my Lords, I cannot help saying that I entertain very grave doubts whether any action could be maintained for an alleged disparagement of another's goods, merely on the allegation that the goods sold by the party who is alleged to have disparaged his competitor's goods are better either generally or in this or that particular respect than his competitors' are....I am dealing with the class of cases which is now before us, where the only disparagement consists in vaunting the superiority of the defendant's own goods". The other law Lords of the House of Lords concurred with Lord Herschell and concluded that the action of the plaintiff will not lie. The law Lords therefore, according to me, said in that judgement that puffing of one's goods even by virtue of statements and representing to the world at large falsely that his goods are the best will not, nor can give a cause of action to another tradesman of same or similar goods to institute proceedings as there is no defamation of the goods of the tradesman suing. It has been stated in the said judgment that if a tradesman says that his competitor's goods are bad to puff or to promote his goods no action will lie. In that judgement of House of Lords observed at pages 163 and 164".... the plaintiff would not be entitled to an injunction, any more than he would be entitled to maintain an action unless he established all that was necessary to make out that a tort had been committed". It therefore appears that if an action lies for defamation an injunction may be granted. The last judgement cited by Mr. Chakraborty is a judgment of the Court of Appeal in Bubbuck v. Wilkinson, reported in 1899 (1) OB 86. In that case a report of an experiment was circulated of two products of two rival manufacturers. In the report the examiner certified that one of the tradesman's product has a slight advantage over his rival but for all practical purposes they could be regarded as equal. The Court of Appeal at page 91 of the report observed "Such a statement, even if untrue and the cause of loss to the plaintiff, is not a cause of action. Moreover, an allegation that the statement was made maliciously is not enough to convert what is the prima facie a lawful into a prima facie unlawful statement. It is not unlawful to say that ones own goods are better than other people" The Court of Appeal therefore, approved striking out of the statement of the claim of the plaintiff on the ground that the statement of claim shows no reasonable cause of action.
9. Mr. Sarkar appearing for the petitioner cited before me a judgement of the Chancery Division in De Beers Abrasive Vs. International General Electric Co., reported in 1975 (2) ALL ER 599, where the aforementioned judgments of the English Law Courts were considered. In that case a manufacturer of natural diamond abrasive sued a manufacturer of a competing abrasive made from synthetic diamonds on the ground that the latter has circulated a pamphlet containing a report of laboratory experiment of comparing the performance and qualities of those two products and wherein the goods of the plaintiff have been tainted. The Learned Judge at page 605 of the report held that 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" and such a statement would not be actionable but if the statement is "My goods are better than X's, because X's, are absolutely rubbish" the statement would be actionable. This proposition was accepted to be the proposition of law laid down by the House of Lords in White v. Mellin.
10. From paragraph 1867 of Clerk & Lindsell on Torts, which has been cited by Mr. Chakraborty, it appears, that the motive of the defendant in this action is spite, a desire to injure the plaintiff as an end itself, and does not include a desire to benefit the defendant at the plaintiff's expenses; a desire to draw away the plaintiff's customers is in itself perfectly legitimate.
11. From the law discussed above it appears to me that the law on subject is as follows:
I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.
II) He can also say that his goods are better than his competitors', even though such statement is untrue.
III) 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.
IV) 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.
V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defermation 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.
12. In the light of aforesaid principles of law, I have to look at the concerned advertisements. A aforesaid the respondents in the concerned advertisements have depicted the product of the petitioner by intentionally showing the container in which the product of the petitioner is sold and in regard to which container the petitioner has a registered design. Further by showing that the product contained in the said container is priced at Rs. 10/- the respondents in no uncertain terms have identified the product of the petitioner since, as aforesaid, the only blue whitener sold in the market priced at or around Rs. 10/- is the product of the petitioner. In the advertisement it has been contended that the blue is uneconomical. It has then been contended that at Rs. 10/-, the average blue is the most expensive to whiten your clothes. Then it has been added "what is more, you have to use lots of blue per wash". While making the said comment the container of the petitioner has been shown up-side-down and it has further been shown that the liquid is gushing out. The object is obviously to show that the product of the petitioner priced at Rs. 10/- gushes out as a squirt and not in drops while using and therefore, it is an expensive way to whiten clothes. The container of the petitioner as produced by Mr. Chakraborty was put by me up-side-down and I found that the liquid packed in the container comes out drop by drop unless one squeezes the container, which is made of plastic. It has then been shown in the advertisement that blue is a product of obsolete technology and therefore, it cannot dissolve completely in water and as such forms sediments at the bottom of the wash bucket. The said assertion it appears to me is not a presentation of a technological disadvantage of the product of the petitioner as was asserted by Mr. Chakraborty but an insinuation to the product itself. The same is clarified by the last assertion contained in advertisements to the effect that blue leaves dirty blue patches on clothes because it forms sediments. The insinuation, therefore, is sediment of blue leaves blue patches on freshly washed cloths since blue cannot dissolve in water. When admittedly blue is used only for the purpose of whitening freshly washed clothes and someone represents that such whitener leaves blue patches on freshly washed clothes, it appears to me, he represents that it is not a whitener at all. The whole impact of the advertisement is to project that the expensive product of the petitioner by reason of its container gushes out uncontrollably and therefore causes wastage and then it cannot dissolve in water and leaves sediments, which sediments cause blue patches on freshly washed cloths. The petitioner has said that all these assertions are aimed at defaming the product of the petitioner, which appears to be so. It appears to me that the object of the advertisements is to project to the existing and future customers of the petitioner that in spite of spending large sums of money for whitening freshly washed clothes what you are getting is blue patched clothes by using the petitioner's product. If this is not saying that the petitioner's product is rubbish in a sophisticated manner then what it is? The answer must; be it is so.
13. In these circumstances I refuse to vacate the interim order as has been passed by me on 1st February, 1996. My aforesaid view is still a prima facie view and should not be taken to be conclusive even for interlocutory purpose and may be altered after affidavits are filed. I, therefore, call for affidavits and the same should be filed on the dates as I have directed affidavits to be field in the contempts matter pending before me. This application will be listed immediately after the contempt matter on the date when the contempt matter has been directed to be listed.
14. In pursuance of the directions given in the order dated 19th February, 1996, affidavits have been field. Thereafter on one day some submissions were made. Thereafter from time to time adjournments were sought for and the same were granted. Ultimately, however, abruptly arguments were concluded.
15. In the affidavit-in-opposition filed by the defendant no. 1 he has stated that whiteners prepared and manufactured by him are sold under the brand name "Ujala" or "Ujala' Supreme''. He has also indicated the plus points of his products in the matter of whitening clothes by washing the same with his products. He has stated that his products were first launched in the State of Kerala in February, 1983, then in the States of Tamil Nadu and Karnataka in 1985 and in the State of West Bengal in 1993. That apart the products of the defendant No. 1, as claimed by him, have been launched in the north-eastern markets too. He has also stated that the defendant No. 1 is exporting his products to Gulf Countries, Malaysia, Sri Lanka, Bangladesh and Russia. In addition to that he has stated that his products are market leaders in Kerala; in Tamil Nadu also his products became market leaders after vanquishing the previous market leader Regal Liquid Blue as well as, the second in the line, Robin Liquid Blue. He has denied that he is engaged in the business of selling and manufacturing whiteners similar to that of the plaintiff. He has sought to distinguish the class of his products and the class of the products sold by the plaintiff and by others. He has stated that blue is sold by the plaintiff and by other manufacturers. He has given names of eleven manufacturers of blue apart from the plaintiff. He has stated that his product is not blue, but is a different superior fabric whitener. He then stated that after his products were introduced in West Bengal, the plaintiff published advertisements disparaging his products.
16. On the substance of the advertisements he has stated that the bottle of dispenser referred to in the advertisements does not refer to Robin Blue because the name "Robin Liquid Blue' has not been printed. He has added that the bottle of dispenser with the word "blue' printed on it meant an ordinary bottle of blue. He then stated that the registered design of the bottle of the plaintiff contains dotted extrusions between the top and bottom portions thereof, but the bottle in the advertisements does not have those extrusions.
17. The defendant No. 1 then stated in the affidavit-in-opposition that the bottle in advertisement resembles other bottles of blue and not the one which contains "Robin Blue" as Robin Blue does not gush out unless squeezed, but comes out in drops, whereas bottles of blue manufactured by others do gush out the unlabelled bottle, which was used in the advertisement, was picked up from a scrap dealer and every step had been taken to ensure that it did not bear any resemblance to the bottle of any make including Robin Blue. It was stated that a reader of the newspaper only looks at the advertisement for a fleeting second and it is not feasible for the reader to identify the product or the manufacturer or the brand in the said advertisement. It was then added that the bottle referred to in the advertisement leaves out all basic features of Robin Blue bottle and the question of any reader of the advertisement identifying the bottle in the advertisement as that of "Robin" cannot possibly arise. It was then asserted that assertion of superiority of "Ujala" over all "Blues" cannot furnish any cause of action to the petitioner as the petitioners' product was not specifically disparaged and that the petitioner can allege disparagement only if its product is identified or is identifiable; otherwise the petitioner has no locus standi in the matter. It was then added that the petitioner's bottle of Robin is priced at Rs. 10.30 and not at Rs. 10/-. It then named five manufacturers of blue whose products are available at Rs. 10.15, Rs. 10.25, Rs. 9.60, Rs. 10.00 and Rs. 10.30. Thus it was asserted that the question of any consumer associating the bottle in the advertisement with that of Robin Blue because of its price of Rs. 10.00 cannot at all arise. He then stated as follows:
"So far as the statement contained regarding drawbacks of "blue" are concerned, I stand by the same and say that the said statements have been made on the basis of scientific research and all are true and correct."
18. He then asserted that he is perfectly entitled in law to assert that his product is technologically superior to the entire class of "blues" available in the market and also that technology used by all the blues manufacturers is obsolete. He asserted that the statements made in the advertisements are correct and true inasmuch as they apply to the generic class of all blues. He also asserted that blues leave sediment after use and that can never be fully dispersed. He has also asserted that there is every factual basis for the statements made in the advertisement which has referred to all "blues" produced in general.
19. In sum and substance therefore the defendant No. 1 contended as follows:-
(i) In the advertisement the defendant No. 1 did not project the product of the petitioner;
(ii) In the advertisement the defendant No. 1 projected the entire class of blues;
(iii) Since the product of the petitioner was not projected in the advertisement, the question of disparaging the product of the petitioner did not arise and as such petitioner has no cause of action;
(iv) The statements made in the advertisement regarding "Blue" are all correct and the same had been made to show the technological advancement of the product of the defendants.
20. In support of the contention that defendant No. 1 could publish such advertisement, the said defendant relied on two judgments of the Monopolies and Restrictive Trade Practices Commission, copies whereof were annexed to the affidavit-in-opposition. In the first judgment so relied upon in the suit instituted by one Mr. M. Balasundaram against the defendant No. 1 and the Director Commercial service of Doordarshan Kendra the Commission recorded that in order to bring home a charge within Clause (x) of section 36A(1) of the it must be established that the disparagement is of the goods, service or trade of another and the representation which is said to have disparaged the goods of another must be proved to be false and misleading, but the bottle shown in the advertisement displayed on the T.V. does not bear any label at all so as to identify the product of the informant. The Commissioner then proceeded to observe that the words "goods of another person" implies disparagement of the product of an identifiable manufacturer and thus the basic requirement of Clause (x) of Section 36A(1) of the Act has not been substantiated in the case. The other decision was given in a case filed by the petitioner against G. Teleprints Ltd. & Ors. In that also it was held that Clause (x) of Section 36A(1) of MRTP Act shows that disparagement of goods of another person would not by itself attract its application and that something more is needed to be established for a case to be fitted within the mischief of Clause (x). In that case it was held that disparaging of goods must be coupled with false and misleading facts before the practice can be characterised as unfair.
21. In the instant case I am not concerned with Section 36A(1) of MRTP Act or any other provision contained in the Monopolies and Restrictive Trade Practices Act. Though for the purpose of the said Act to put home the charge of disparagement of goods the complainant may be required to establish falsity of the claim made in the impugned advertisement, but I do not and cannot accept that to maintain a claim for damage in a civil suit a trader is required to establish the falsity of the claim put forward by another trader in an advertisement to the effect that the product sold by the said trader is superior because the product sold by the other trader is inferior.
22. Therefore, in a suit of this nature one has to look at whether the advertisement merely puffed the product of the advertiser or in the garb of doing the same directly or indirectly contended that the product of the other trader is inferior. There cannot be any dispute that in the concerned advertisements blue was stated to be of inferior quality. Although, for having depicted the container and the price in the advertisement together it is difficult to proceed on the basis that the defendant No. 1 was not referring to Robin Blue, but assuming in the advertisement insinuations are not made against Robin Blue and the same were directed to all blues as has been stated in no uncertain terms in the affidavits, can it be said that it was not made against Robin Blue? The answer is a definite "no", because Robin Blue is also a blue.
23. It was sought to be contended that insinuations against all are permissible, though the same may not be permissible against one particular individual. I do not accept the same for the simple reason that while saying all are bad it was being said all and everyone is bad and anyone fitting the description of everyone is affected thereby.
24. It is true that one can boast about technological superiority of his product and while doing so can also compare the advantages of his product with those which are available in the market. He can also boast about the relative advantages of his own product over the other products available in the market. He can also say that the technology of the products available in the market has become old or obsolete. He can further add that the new technology available to him is far more superior to the known technology, but he cannot say that the known technology is bad and harmful or that the product made with the known technology is bad and harmful. What he can claim is only that his product and his technology is superior. While comparing the technology and the products manufactured on the basis thereof, he can say that by reason of the new superior technology available to him, his product is much superior to others. He cannot, however, while so comparing say that the available technology and the products made in accordance therewith are bad and harmful.
25. In the instant case the object of the advertisement was to convey to the customers of the blue including those of the plaintiff that if you use blue to whiten your washed clothes you will get washed clothes with blue patches. This could not be done. In those circumstances the orders passed by me on this application are confirmed and the same will continue until disposal of the suit.