S. Ravindra Bhat, J.

1. This is a defendant’s appeal directed against a decree for permanent injunction issued by the learned Single Judge in a claim alleging that the defendant/appellant’s advertisement had disparaged the plaintiff’s goods. The impugned judgment also directed payment of punitive damages to the extent of Rs. 5 lakhs to the plaintiff. The parties will be referred to by their original description in the suit for the sake of convenience. RFA (OS) 50/2008 Page 2

2. The plaintiff (hereafter “Reckitt”) sought to restrain the defendant Hindustan Lever Ltd. (hereafter “HUL”) by permanent injunction from telecasting the impugned advertisement or otherwise disparaging Reckitt’s goodwill and reputation and its product sold under the trade mark DETTOL, in any other advertisements and in all media, from using the depiction of Reckitt’s soap or any other soap deceptively similar to that of Reckitt’s in its advertisement or in any other manner disparaging the goodwill and reputation of Reckitt and its product sold under the trade mark DETTOL, and finally, from using any other indicia whatsoever to associate with/depict Reckittor its products in its advertisements issued in any and all media whatsoever including the electronic media. Reckitt also sought damages to the tune of Rs.20,00,050/- towards disparagement, denigration and tarnishment of its goodwill and reputation by the impugned advertisement. A claim for exemplary damages too was made in the suit.

3. Reckitt is involved in the manufacture of the famous antiseptic disinfectant under the trade mark DETTOL for over 70 years. It was averred that the mark DETTOL is synonymous with good hygiene and, today, it is a household name and is the most widely used antiseptic disinfectant in the country. The plaint also mentioned the history of DETTOL dating back to 1929 when the DETTOL antiseptic liquid was developed. As an antiseptic germ disinfectant, it was argued, DETTOL had an unparalleled reputation in the medical profession and that it continuously evolved to meet modern day demands, and now incorporates a range of innovative antiseptic, disinfectant and cleaning products ranging from antiseptic liquid, hand wash and the DETTOL toilet soap which has been manufactured and sold by Reckitt continuously since 1981. Reckitt relied on the new modern, distinctive and unique shape of the DETTOL toilet soap, which was subjected to intentional and deliberate disparagement by the defendant is identified by the members of the trade and public by its colour. Reckitt stated that on the front of the soap the trade mark “DETTOL” and the sword device is clearly visible. Reckitt contended that consumer-recognition of its products is by the colour and distinctive shape of the soap, and also through its distinctive green coloured packaging. In 1981, the DETTOL soap was launched as a rectangular shaped, orange coloured bar without any curves. Reckitt adopted the present shape with the curves instead of edges in May, 2006. It was argued that this new improved soap with curvature in the middle and curved edges helps consumers to easily identify and distinguish the product from others. Unlike other orange coloured soaps in the market, Reckitt’s product is the only one with such distinctive shape. Three variants of the new soap are available in the market, i.e. DETTOL Original; DETTOL Skincare (a white soap) and DETTOL Cool (a blue soap). Of the three variants, the DETTOL Original bar is an orange coloured and is the most popular. According to the plaint, the sale of DETTOL Original constitutes 80% of the total DETTOL soap sales.

4. Reckitt argued that the soap packaging has always been of a distinctive green and white colour combination and such packaging is synonymous with Reckitt’s famous DETTOL brand. In this line of argument, Reckitt argues that the purchasing public perceives the orange coloured bar with its distinctive shape and the distinctive green and white packaging to be synonymou