Judgment

M. Jagannadha Rao, J.-Hindustan Lever Ltd. has filed this Civil Appeal under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter called the Act) against the order of the Monopolies & Restrictive Trade Practices Commission (hereinafter called the Commission). The order is dated 5/6 November, 1997 and is passed in Injunction Application No. 336 of 1997 filed in the Main Case No. 405 of 1997.

2. The two respondents are Colgate Palmolive (India) Ltd. and Miss Pallavi S. Desai. The said respondents were the complainants 1 and 2 respectively in the main case No. 405 of 1997 which is pending before the Commission. By virtue of the impugned order, certain directions in the nature of temporary injunction have been granted in favour of the respondents-complainants and against the appellant. It is to be noted further that the Commission, which directed a panel of experts to give its opinion on the issue involved, made it clear that the order that was being passed was a “temporary interim order’’ and a final order on the Injunction Application would be passed later after receiving the opinion of the experts. The Commission said:

“If the parties are agreeable, the order passed at present may be treated as a purely temporary interim order subject to modification, variation or vacation after perusing the opinion of the aforesaid panel of experts”.

3. We shall state the brief facts and the conclusions of the Commission in so far as they are material for the purposes of this appeal.

The 1st respondent, Colgate-Palmolive (India) Ltd. manufactures ‘Colgate Dental Cream’. The appellant too has various brands of tooth paste but we are concerned here with the ‘New Pepsodent’ toothpaste introduced by the appellant recently into the market. The appellant had given advertisement in the print, visual and hoarding media, claiming that its toothpaste “New Pepsodent” was “102% better than the leading toothpaste”. The advertisement contains a ‘schematic picture’ supposedly of samples of ‘saliva/smear’. It depicts on one side of the advertisement a pictorial representation of the germs in a sample taken from the mouth of a person hours after brushing with “the leading toothpaste.” And another pictorial representation is of the germs from a similar sample taken from the mouth of another person using the “New Pepsodent”. The former shows large number of germs remaining in the sample of saliva where the ‘leading toothpaste’ is used and the latter shows almost neglible quantity of germs in the sample of saliva where ‘New Pepsodent’ is used. The advertisement also speaks of tests conducted at the Hindustan Lever Dental Research Centre and says that the appellant’s product is based on a Germ check formula which is twice as effective on germs as the leading toothpaste and that it was, in fact, 102% better in fighting germs. In the TV advertisement of the appellant, two boys are asked the name of the toothpaste with which they had brushed their teeth in the morning. The advertisement shows Pepsodent 102% superior in killing germs which is being used by one of the boys. So far as the other boy is concerned, who is using another toothpaste which is inferior in killing germs, the lip movement, according to the respondents, indicates that the boy was using ‘Colgate’ though the voice is muted. Additionally, when this muting is done there is a sound of the same jingle as is used in the usual Colgate-advertisement, leaving, according to the complainants, doubts in the minds of the viewers that ‘Pepsodent’ was being compared with Colgate.

4. On these and other allegations, the complaint was filed by the respondents before the Commission relying upon Sections 10, 36A and 36B of the Act and in particular upon Section 36A (viii) and (x) of the Act. The respondents also filed an Injunction Application 336/1997 for grant of temporary injunction under Section 12A of the Act. It was contended that the appellant was guilty of ‘unfair trade prac