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IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, ABDUL QUDDHOSE, JJ.
Gillette India Limited, Represented by its Authorized Signatory, Siddhant Sharma - Appellant
Versus
Reckitt Benckiser (India) Private Limited, Represented by its Authorized Signatory, Rajesh Kumar Jha - Respondent
O.S.A. Nos. 35 to 39 of 2018 & C.M.P. Nos. 2116 to 2124 of 2018
Decided On : 19-04-2018
The Court held that the impugned advertisements issued by the appellant disparaged the product of the respondent plaintiff. The Court observed that the overall impact of the advertisement was disparaging by reason of the depictions mentioned above. Even the more discerning purchasers of depilatory creams are likely to be swayed by the overall impact of the advertisement and in particular the assertion that all depilatory creams contain Urea, T.G. Acid and chemicals as strong as bathroom cleaners read with the disclaimer based on analysis and technical tests which shows pH levels as high as 12. It is difficult to accept Mr.Raman's argument that the advertisement only educates the public on various features of hair removal creams.
Fact of the Case:
The respondent plaintiff is a manufacturer of depilatories (Hair Removal Creams), whereas the appellant is a manufacturer of Razors. Even though, the product of the appellant and the respondent plaintiff are different, both depilatory creams and razors are used for removal of unwanted hair from the human body. While the appellant's product is constituted of blades with protective coverings and a handle, the respondent plaintiff's product is a cream.
Finding of the Court:
The Court held that the impugned advertisements issued by the appellant disparaged the product of the respondent plaintiff. The Court observed that the overall impact of the advertisement was disparaging by reason of the depictions mentioned above. Even the more discerning purchasers of depilatory creams are likely to be swayed by the overall impact of the advertisement and in particular the assertion that all depilatory creams contain Urea, T.G. Acid and chemicals as strong as bathroom cleaners read with the disclaimer based on analysis and technical tests which shows pH levels as high as 12. It is difficult to accept Mr.Raman's argument that the advertisement only educates the public on various features of hair removal creams.
Issues: Whether the impugned advertisements issued by the appellant disparaged the product of the respondent plaintiff.
Ratio Decidendi: The Court held that the impugned advertisements issued by the appellant disparaged the product of the respondent plaintiff. The Court observed that the overall impact of the advertisement was disparaging by reason of the depictions mentioned above. Even the more discerning purchasers of depilatory creams are likely to be swayed by the overall impact of the advertisement and in particular the assertion that all depilatory creams contain Urea, T.G. Acid and chemicals as strong as bathroom cleaners read with the disclaimer based on analysis and technical tests which shows pH levels as high as 12. It is difficult to accept Mr.Raman's argument that the advertisement only educates the public on various features of hair removal creams.
Final Decision: The Court allowed the appeals partly. The order of the learned Single Judge is set aside to the extent it applies to the print advertisement of the appellant depicted above. The order of injunction is affirmed in respect of the advertisement by way of video clip with the clarification that the injunction will not prevent the appellant from displaying non disparaging advertisements in the electronic media and/or any other cinematographic form after editing and removing the offending portions of the advertisement.
1. These appeals have been filed by the appellant under Clause 15 of the Letters Patent against the Common Order dated 10.11.2017 passed by the learned Single Judge in O.A.Nos.977 to 981 of 2017 in C.S.No.768 of 2017. C.S.No.768 of 2017 filed by the respondent in a disparagement suit.
2. The respondent plaintiff is a manufacturer of depilatories (Hair Removal Creams), whereas the appellant is a manufacturer of Razors. Even though, the product of the appellant and the respondent plaintiff are different, both depilatory creams and razors are used for removal of unwanted hair from the human body. While the appellant's product is constituted of blades with protective coverings and a handle, the respondent plaintiff's product is a cream.
3. The case of the respondent plaintiff is that the appellant has, in its print and in its electronic audio visual advertisement, denigrated and disparaged the product VEET manufactured by the respondent.
4. The advertisement posted by the respondent plaintiff in the print media, under challenge in the suit is reproduced herein below:
“IMAGE”
5. The respondent plaintiff has also impugned an advertisement issued by the appellant, inter alia, in the electronic visual media by way of a thirty second video clip, which is depicted herein below along with still photographs:
“IMAGE”
VOICE: Let’s silence the comments and the compromises
“IMAGE”
VOICE: Let’s call out the hair removal creams that come in all sizes
“IMAGE”
VOICE: Tall, thin short. Even the 10 and 20 gram sorts
“IMAGE”
Disclaimer super: TG acid refers to Thioglycolic acid
VOICE: So open your eyes, read before use
“IMAGE”
VOICE: Don’t squeeze, don’t spread
“IMAGE”
VOICE: Don’t repeat the abuse.
“IMAGE”
Disclaimer super: Based on analysis and technical tests which shows Ph levels as high as 12 on account of some ingredients in hair removal creams.
VOICE: Urea and chemicals as strong as bathroom cleaners
“IMAGE”
VOICE: Oh yes, hair removal creams are filled with it
“IMAGE”
VOICE: So do yourself a favor. Get some care for your curves.
“IMAGE”
Disclaimer super: Based on analysis and technical tests which shows Ph levels as high as 12 on account of some ingredients in hair removal creams.
VOICE: Coz its love not strong chemicals that you deserve.
6. In order to appreciate the impact of the advertisement in, inter alia, the electronic audio visual media, it would be necessary to actually view the video clip, which is of 30 seconds duration, along with along with the histrionics, the voice modulation, language used, etc. The video clip would necessarily have to be judged by its overall impact.
7. The learned Single Judge has, by the order dated 10.11.2017 under appeal, allowed the interlocutory applications filed by the respondent and made absolute the earlier interim orders restraining the appellant (being the defendant/respondent before the Single Bench), its Directors, Principals, Proprietors, Partners, officers, employees, agents, distributors, franchisees, representatives or assigns from issuing or telecasting the advertisements impugned or in any other manner disparaging the goodwill and reputation of the respondent plaintiff and its products sold under the trademark “VEET” in any other advertisements or in any media, including the electronic media, social media, and/or print media or making comparison or importing direct or indirect reference to hair removal creams, thereby conveying a message to the public that the hair removal creams are harmful to the skin or contain chemicals that are harmful to the skin or in any other manner whatsoever denigrating the hair removal creams pending disposal of the suit. The learned Single Judge directed the parties to go for trial, clarifying that the observations made in the order under appeal were prima facie in nature and would not affect the trial.
8. By an interim order dated 21.02.2018, in CMP Nos.2116, 2118, 2120 and 2122 of 2018 in these appeals, this Court granted a partial stay of the operation of the order under appea
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