In the case of Reckitt & Colman of India Ltd vs. Kiwi T.T.K. Ltd., the Delhi High Court bench comprising Justice S. K. Mahajan settled the principle that a comparative advertisement is admissible, however it should not in any manner be intended to disparage or defame the product of the competitor.
Facts of the case:
- Reckitt & Colman of India Ltd. (hereafter referred as “Plaintiff”) is a manufacturer and seller of liquid shoe polish under the name and style of ‘Cherry Blossom Premium Liquid Wax Polish’. Kiwi T.T.K. Ltd. (hereafter referred as “Defendant”) is a manufacturer and seller of liquid shoe polish under the brand name of ‘KIWI’.
- To promote KIWI shoe polish, the defendant came up with an electronic advertisement as well as ‘Point of Sale’ poster material. The said advertisements depicted a bottle of shoe polish with brand name ‘KIWI’ and another bottle of shoe polish described as ‘Others’ was labelled as ‘Brand X’. The bottle labelled as ‘Brand X’ had a red blob on its surface representing ‘Cherry’ as shown on the bottle of the product of Plaintiff. Also, the shape of the others bottle labelled as ‘Brand X’ looked like the bottle of the liquid shoe polish of the Plaintiff.
- The Defendant used the principle of comparative advertisement and depicted the difference between its own brand KIWI and the brand of others by labelling it as ‘Brand X’. The Defendant showed that the bottle of KIWI doesn’t drip whereas the bottle of Brand X drips. The Defendant further showed in its ‘Point of Sale’ posters that the bottle of ‘Others’ has faulty ‘Applicator’. In the said advertisement, the Defendant also claimed that its product has more wax than any other liquid shoe polish.
- The Plaintiff, being aggrieved by the said advertisement, filed a Suit for an injunction restraining the Defendant from advertising the products in the manner they had been doing. The Plaintiff also filed an application under Order 39 Rule 1 and 2 of the Civil Procedure Code, 1908 for an ad interim order of injunction restraining the Defendant from displaying such advertisements.
- At the outset, the Defendant agreed to withdraw the ‘Point of Sale’ posters circulated in the market and to remove the red blob on the surface of the ‘Brand X’ as shown in the advertisement.
Judgment:
- The Hon’ble Court concluded that the question to be considered in this case is, whether the bottle shown in the commercials in the electronic media can still be said to resemble the bottle of the liquid shoe polish of the Plaintiff and circulation of the said commercial is an attempt on the part of the Defendant to disparage and defame the product of the Plaintiff.
- In an unreported judgment in suit No.31/96, Reckitt & Colman Vs. M. S. Ramachandran and another, delivered on February 19, 1996, the Hon’ble Calcutta High Court laid down five principles to decide whether a party is entitled to an injunction. They are as follows:
a) A tradesman is entitled to declare his goods to be best in the words, even though the declaration is untrue.
b) A tradesman can also say that his goods are better than his competitor’s, even though such a 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 his goods are better than his competitor’s, say that his competitor’s 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. - Accordingly, the Hon’ble Delhi High Court held in this present case that, as a settled law, a manufacturer is entitled to make statements that his goods are the best and make some statements for puffing off his goods. Such statements will not give a cause of action to other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation to the goods of the other traders or manufacturers. However, the Hon’ble Court clarified that, a manufacturer is not entitled to say that his competitor’s goods are bad so as to puff and promote his own goods. An injunction may be granted if it appears that the action of the manufacturer causes defamation.
- The Court held that after removal of a red blob on the bottle of ‘Brand X’ as shown in the advertisement, a consumer who watches the advertisement on the electronic media only for a fleeting moment may not get the impression that the bottle is the bottle of the Plaintiff. The Court also held that, since, after the removal of the red blob from the bottle of ‘Brand X’ it cannot be linked to the product of the Plaintiff, there will not be any question of disparaging or defaming the product of the Plaintiff.
- Accordingly, the Hon’ble Court modified the interim order passed and restrained the Defendant from printing, circulating, or distributing the ‘point of sale’ posters in the market or publishing the impugned advertisement on electronic media or at any other place with the red blob on the bottle of ‘Brand X’
- The Judgement in Reckitt & Colman of India Ltd vs. Kiwi T.T.K. Ltd. has been referred in many important cases where the legality of comparative advertisement was in question. It has been cited in the judgements of Dabur India Limited vs. Colgate Palmolive India Ltd., Reckitt Benckiser (India) Ltd. vs. Hindustan Lever Ltd., Pepsi Co., Inc. and Ors. vs Hindustan Coca Cola Ltd. and Anr., Colgate Palmolive (India) Ltd. vs. Anchor Health and Beauty Care (P) Ltd. etc.
