RECKIT BENCKISER INDIA LIMITED Vs. NAGA LIMITED

JUDGEMENT

(1.) The Plaintiff has filed this Suit for permanent and mandatory injunction, being aggrieved by the Defendant's television commercial which depicts a woman in an advanced stage of pregnancy needing urgent medical assistance during a train journey. The doctor calls for hot water and is handed a cake of soap which she rejects, stating that an antiseptic soap is needed. It is not in dispute that the soap which was handed over to the doctor is identifiable by viewers as the Plaintiff's product, namely, Dettol Soap. The doctor further states in the commercial that"at a time like this, you do not need just antiseptic, you need a protector". The Defendant's ayurvedic soap is then shown and it is concurrently stated that it is a body 'rakshak' soap, the first ayurvedic soap that completely removes all seven kinds of terms and protects from infection. The Plaintiff's grievance is that this commercial disparages its Dettol Soap. It is averred that the intention behind the commercial is malicious, especially in view of the the trade literature which shows that Dettol Brand sales are about 30-35 crores out of a total sales of Rs.230 crores. The Plaintiff has vehemently stressed that Dettol is the leader in brand equity.

(2.) On 14.2.2003 the Defendants had been restrained from broadcasting any advertisements/television commercials or brochures containing a soap of saffron colour. The Defendant had filed an application under Order XXXIX Rule 4 for vacating the injunction. The Plaintiff had filed an application for initiating contempt proceedings against the Defendant for the broadcast of this commercial after the issuance of ex-parte ad interim injunction. Both these applications had been withdrawn on 28.3.2003. The Plaintiff 's application for ad interim injunction shall now be disposed of by these Orders.

(3.) Clerk & Lindsell on Torts draws a distinction between malicious prosecution and defamation, in that "defamation protects the Plaintiff's reputation, while malicious falsehood protects the Plaintiff's interest in his property or trade". In its chapter on Libel and Slander, American Jurisprudence, Second Edition, Volume 50 declares that -- " Generally, the publication of any false and malicious statement which tends to disparage the quality, condition, or value of the property of another, and which causes him special injury or damage, is actionable. ..... A cause of action for defamation generally does not arise in favour of one whose merchandise or products are criticized, not for the purpose of obtaining a competitive advantage, but merely to express displeasure or dissatisfaction therewith, nor is an advertisement actionable which does no more than state a claim that the plaintiff's goods are inferior to those of the defendant......... It is firmly established that malice, express or implied, in the making of the slanderous statement is an essential ingredient of a cause of action for slander of title." Halsbury's Laws of England, Fourth Edition, Volume 45 defines tort as 'civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of a right imposed or conferred by law rather than by agreement'. In Timothy White vs. Gustav Mellin, 1895 AC 154, the House of Lords ruled that an action for libel and defamation or slander of goods of a rival trader would not lie and no injunction to restrain the defendant ought to be granted despite the fact that the defendant sold the plaintiff's product affixing thereto a label stating that the defendant's product was far more nutritious and healthy than any other. The House of Lords stated that to maintain a cause of action for slander of goods the plaintiff must prove (a) that the statement is disparaging to the plaintiff's goods; (b) that it is false and (c) that it has caused special damage to the plaintiff. It found that none of these has been proved and that the defendant's label was a mere trade puff and would be so regarded by the purchasing public. I would add that so long as a statement is substantially truthful, a claim for defamation or slander to goods would not be granted.