2020 Supreme(Mad) 2269

IN THE HIGH COURT OF MADRAS
P.T. Asha, J.
Reckitt Benckiser Healthcare India Private Limited - Appellant
Versus
Cipla Limited - Respondent
O.A. Nos. 72 to 75 of 2020 in C.S. No. 43 of 2020
Decided On : 24-11-2020

Headnote:

Constitution of India,1950 - Article 19(1) (a) and 19(2) - Consumer Protection Act 1986 - Section 2(1)(r) - Monopolies and Restrictive Trade Practices Act, 1969 - Section 36 A - interim injunction restraining the Defendant - Disparaging the goodwill and reputation of the Plaintiff and its product sold under brand MOOV - Whether respondent has made a false claim with reference to their product in advertisement that it eliminates pain from the root - Whether the applicant has come to Court with clean hands and made out a prima facie case for grant of orders of injunction - whether a comparative advertisement is disparaging and therefore actionable the Court should be convinced that claim made in the advertisement is false and it is made with malice - Whether commercial of respondent in respect of their mosquito repellent Good Knight repellent disparages Appellant's product Odomas - Whether the electronic audio video advertisement made by appellant - Whether an advertisement is disparaging - Whether the object of advertisement is to highlight the benefits of products of advertiser in comparison to those of others or to denigrate products of others, - Whether respondent has made a false claim with reference to their product in advertisement by claiming that it eliminates pain from the root - Whether applicant has come to Court with unclean hands - Grant ad-interim injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from using any other indicia whatsoever to associate with / depict the Plaintiff or its products in its advertisements issued in any and all media whatsoever including electronic media pending disposal - grant ad-interim injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from using the depiction of Plaintiff's product or any other product deceptively similar to that of the Plaintiff's in its advertisement or in any other manner disparaging the goodwill and reputation of Plaintiff and its product sold under brand MOOV - Product was marketed both as a cream as well as a gel in India - Applicant would submit that they are an established and well known brand in pain alleviating sector in India - Applicant earns a total turnover of Rs. 284 Crores from the marketing of MOOV cream and Rs. 86 Crores from MOOV spray - applicant's product is identified by its unique packaging particularly its container with a purple cap - Applicant's product is only muscle pain relieving product in the market having a purple cap. By reason of its popularity, colour purple has now come to be associated with the applicant's product MOOV case of the applicant, that on 19.01.2020 in the midst of the telecast of Cricket match between India and Australia on Star Sports Thamizh, applicant had come across an advertisement of the respondent for its pain relief gel / spray under the brand– Held, Removes/eliminates the pain from the root ". When the entire storyline is considered the message that is conveyed is not that the pain will be uprooted but that the pain will be addressed at the root/source and eliminated - Pharmacist does not use the word (uprooting) which clearly expresses the intent of the respondent to convey the message that their products eliminates the pain at its source - It is also seen that applicant's have themselves advertised their product as giving a long lasting relief by targeting the source of pain. They have advertised on the efficacy of the diclofenac formula to address and relieve pain - Point is also answered against the applicant - respondent has submitted that at the time of the filing of the suit the applicant had only introduced MOOV Advance containing Diclofenac in its gel form which is sold in a white tube with a white cap. This tube is not shown in the impugned Advertisement - Spray was introduced only after the filing of the suit - These facts admittedly are not stated in the plaint or the affidavit filed in support of the applications. This is a deliberate suppression on part of the applicant -Applicant's product then in the market was not in the same genre of the respondent i.e., the applicant's products are Ayurvedic not containing Diclofenac whereas the respondent's product contains Diclofenac - context and totally contrary to what has been depicted to snatch an interim order. It is an axiomatic principle of law that a person who seeks an order of injunction should come to Court with clean hands above factors would clearly indicate that the applicant has suppressed material facts from Court. This point is also answered against the applicant - Applications are dismissed