HINDUSTAN LEVER LIMITED Vs. MRTP COMMISSION

JUDGEMENT

(1.) Colgate Palmolive (India) Limited complainant No.1 (hereinafter referred to as 'Colgate') filed a complaint along with complainant No.2, claiming to be a consumer, before the Monopolies and Restrictive Trade Practices Commission (herein after referred to as the "Commission") against M/s. Hindustan Lever Limited complaining that the advertisement campaign of the latter regarding its dental cream New Pepsodent disparages the leading toothpaste namely Colgate Dental Cream manufactured by complainant No.1. It was further alleged that M/s Hindustan Lever Limited was indulging in unfair trade practices. The product 'New Pepsodent' was recently introduced in the market. The advertisement campaign of this product through the print, visual media and otherwise, was being carried out in a manner which misleads the public at large while at the same time it is disparaging to the product of complainant No.1, namely, Colgate Dental Cream. In its various advertisements Hindustan Lever claimed that the New Pepsodent toothpaste had 102% anti-bacterial superiority over the leading toothpaste. Along with the complaint, an application under section 12A of the Monopolies and Restrictive Trade Practices Act 1969 (hereinafter referred to as the'Act') was filed for interim relief. By an order dated 5/11/1997 and 6/11/1997, the Commission passed certain interim directions by way of interim relief in favour of the complainants. The Commission also felt that in view of the claim of Hindustan Lever that New Pepsodent had 102% anti-bacterial superiority over the leading toothpaste (which prima facie was found to be the Colgate Dental Cream) opinion of independent experts would be helpful in deciding the matter. The Commission felt that examination of truthfulness of such claim involves a highly scientific approach. It was also felt that the issue was technical in nature and both the parties had relied upon expert opinion filed by them on record. In these circumstances, the Commission felt that it would be better to be guided by independent expert opinion on the subject. Both the parties i.e. Colgate and Hindustan Lever were required to furnish the name of one expert on each side. In addition, Commission was to nominate an expert from its side. The opinion of the experts was to be utilised for purposed of final decision as also for passing final orders on the interim relief application. Thus the order passed on 5th/6th November, 1997 was treated to be a purely temporary interim order subject to modification, variation or vacation after perusing the report of panel of experts and after hearing both the sides. Certain directions were also issued regarding the conduct of the advertisement campaign by M/s.Hindustan Lever. This temporary interim order of the Commission was challenged by the Hindustan Lever before the Supreme Court, as per provisions of Section 55 of the Act. The Supreme Court vide its order dated 17/12/1997 rejected the challenge. It was observed:-

(2.) This was followed by an order dated 13/2/1998 passed by the Commission by which the expert panel of three experts was constituted. The Commission observed:-

(3.) Mr.Michael Cole, the Chairman of the expert panel vide his letter dated 27/7/1998 addressed to the Chairman of the Commission raised certain queries. Copies of the said letter were given by the Commission to the rival parties, inviting their comments. Both the sides filed their comments. The arguments were also heard on behalf of both the parties. Thereafter the Commission passed the impugned order dated 18/11/1998, the operative part whereof is reproduced as under:-