Commercial advertisements must promote without disparaging competitors; misleading claims are impermissible under protection afforded to commercial speech.

JUDGMENT

Vibhu Bakhru, J. The appellant (hereafter `Reckitt') has filed the present intra court appeal impugning a judgement dated 09.11.2021 (hereafter `the impugned judgement') passed by the learned Single Judge in an application preferred by Reckitt under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (hereafter `CPC') in the suit bearing no. CS(COMM.) 340/2021. Reckitt is aggrieved to the limited extent that the learned Sigle Judge has rejected its prayer for restraining the respondent (hereafter `HUL') from broadcasting a TV Commercial (hereafter `the impugned TVC-I') which according to Reckitt was disparaging its product sold under the trademark `HARPIC', during the pendency of the suit.

Factual Context

2. Reckitt (Reckitt Benckiser India Private Limited) is a company engaged in the manufacturing, packaging, sale and distribution of various fast moving consumer goods. Reckitt's business comprises of various consumer and healthcare products including antiseptic liquid, toilet care products, surface care products, pharmaceuticals, insecticides and food products.

3. Reckitt states that it has been involved in the manufacturing of a well-known toilet cleaner under the trade mark `HARPIC' in India, since the year 2001. It claims that Harpic is a household name in the category of toilet cleaners and the most widely used toilet cleaner brand in the country. Its use dates back to its original launch in England in 1920 and subsequently it is being sold in over 47 countries worldwide.

4. Reckitt states that on 15.03.1979, it registered the word mark `HARPIC' (Application No. 347055) under Class 3. The said trade mark registration is valid and subsisting as of date. Reckitt also obtained registration for the shape of their bottle used for packaging Harpic branded products in India. It claims that the shape of the bottle is unique and distinctive. Since its launch, the shape of the bottle has become a source identifier for its product.

5. HUL is engaged in the business of fast moving consumer goods (hereafter `FMCG'), consisting primarily of manufacturing, marketing and/or selling of various consumer products, including food and refreshments, cosmetics, toiletries, floor cleaners, toilet cleaners, toilet soaps, washing soaps and detergents.

6. HUL also manufactures and markets a toilet cleaner, which is sold under the trademark `DOMEX'. The present dispute pertains to certain advertisements launched by HUL for its product Domex. HUL claims that its product is superior in fighting bad odour in comparison to Reckitt's product Harpic. Reckitt disputes this claim. As stated above, Reckitt has instituted the present action, as it claims that HUL's advertisement campaign disparages and denigrates its product Harpic.

7. Reckitt has filed the said suit [CS(COMM.) 340/2021], inter alia, seeking a decree of permanent injunction restraining HUL from telecasting, broadcasting and publishing five advertisements (referred to as `the impugned advertisements'). The impugned advertisements includes the impugned TVC-1, three commercials that were available for viewing on the internet channel, YouTube, and an advertisement in print, published in a newspaper. According to Reckitt, the impugned advertisements are denigrating and disparaging the products manufactured by it, and infringes its trademarks. Reckitt also filed an application under Order XXXIX Rule 1 and 2 of the CPC (IA No. 8999/2021) seeking interim injunction, restraining HUL from publishing or airing the impugned advertisements. The said application was disposed of by the impugned judgement

8. The learned Single Judge found that the advertisement published in the newspaper and the three commercials available for viewing on YouTube appeared to disparage Reckitt's products. However, the court did not accept that the impugned TVC-1 indicated a prima facie case of disparagement. Accordingly, the learned Single Judge restrained HUL from publishing or broadcasting fo