The plaintiff's withdrawal of a previous suit without reserving the right to file a fresh suit on the same cause of action estops them from claiming that any red rectangular shaped soap or a red-colored soap or a red soap of any other shape is to be identified with "Lifebuoy".

I.P. Mukerji, J.

1. The Court: This is a war between two multi-national companies. It is a war over broadcast of advertisements, over brands and for pride. The two body corporates involved are the plaintiff and the defendant. The two brands that concern us are "Lifebuoy" and "Dettol". One is an interim application in aid of the suit complaining of disparagement. The storyboard of the advertisement complained of is annexure B to the interim application (GA No. 1687 of 2012).

2. In that application I had passed an ex parte interim order on 25th June, 2012 directing the defendant to delete the top left-hand frame of the advertisement appearing at page 37 of the petition. The defendant was permitted to show the advertisement or that part of the advertisement by deleting the red soap therefrom. The interim order was made limited till today.

3. The background facts are stated in the order of 25th June, 2012.

4. Subsequently, on 29th June, 2012 the defendant took out an application (GA No. 1748 of 2012) for discharge of the interim order. The above interim application of the plaintiff as well as the application by the defendant were taken up by me for consideration at the "New Motion" stage, yesterday and today.

5. Mr. Gautam Chakraborty, learned Senior Advocate supplemented by Mr. Lall, learned Advocate submitted that in June, 2006 the plaintiff instituted a suit (SC(OS) 1292 of 2006) in the Hon'ble Court at Delhi; complaining of alleged disparagement of their product "Lifebuoy" by the defendant by broadcasting an advertisement. An interim application was made in aid of that suit being IA No. 7016 of 2006.

6. In that interim application, a learned 'Judge of that Court passed a detailed judgment and order on 16th November, 2006. The advertisement, amongst other things showed several soaps, one of which was an unbranded rectangular red soap. The other soaps were of different colours. The learned Judge opined inter alia that the presence of the several soaps along with the red coloured soap did not denote that the red soap was identifiable with "Lifebuoy". The read soap shown was unbranded and there were several red soaps in the market, according to the judgment.

7. But Mr. S.N. Mookherjee, learned senior counsel for the plaintiff pointed out a passage in that judgment and order which said that if instead of several soaps there was only one soap, the conclusion might not have been the same.

8. Thereafter, I find that there was a second advertisement broadcast by the defendant against which the plaintiff filed an interim application in the same suit at Delhi being IA No. 13870 of 2007. It was filed on 4th December, 2007. The second application is from pages 211 of the application made by the defendant. The storyboard starts from page 218. The material frames are at pages 236 and 239 and where respectively two red coloured soaps and one red and one blue soap are shown. It was inter alia depicted therein that the red soap was unable to eradicate germs. The plaintiff felt aggrieved by this advertisement.

9. It was, further, submitted by the learned counsel for the defendant that on 8th September, 2011, the plaintiff withdrew from that suit. It was submitted by Mr. S.N. Mookherjee that since the defendant stopped airing the advertisement the suit was withdrawn.

10. I have seen the order of 8th September, 2011 of the Delhi High Court. Liberty was given to the plaintiff to file a fresh suit in case there was a fresh cause of action. Hence, in my opinion there was no leave to file a fresh suit for the self-same cause of action.

11. Mr. S.N. Mookherjee, learned senior, counsel for the defendant also submitted that the advertisement which was the subject, matter of the second application contained the following:

Super: As, per standard testing protocol against soaps without actives.

12. Mr. Mookherjee suggested that this description excluded, Lifebuoy soap, which contained "actives". Actives are ingredients which fight germ or prevent invasion by germs,