HINDUSTAN LEVER LTD Vs. COLGATE PALMOLIVE INDIA LTD

JUDGEMENT

(1.) The claim of 2 times superiority on the part of Colgate Dental Cream-Double Protection over any ordinary toothpaste has brought about another legal battle between two multinational corporate giants making this Commission as a battlefield for the purpose. Weapons of the battle have obviously been arguments and submissions by learned Counsels from both sides, materials containing studies of tests carried out by both the sides together with opinions of experts on conclusions, results of some survey got done by and on behalf of the applicants/complainants in order to find out the concept of "ordinary toothpaste" and the like. It may be indicated that this is the third legal battle between the same parties before this Commission.

(2.) The facts giving rise to the present proceeding may be summarised in a nut-shell. The respondent claims to be a market leader in toothpaste. It has recently introduced sometime in or around June, 1998 its toothpaste styling it as "colgate Dental Cream-Double Protection" [cdc-DP for convenience]. With a view to promoting its sales, the respondent has given through both the print and the visual media wide publicity to its 2 times superiority over any ordinary toothpaste qua fighting germs and qua protection from germs that cause bad breath and tooth decay. This advertising gimmicks appears to have irked its competitor (applicant/ complainant No.1) in this proceeding. It has therefore, in the company of one consumer, approached this Commission under Sections 36b (a) and (d) and Sections 10 (a) (i) and (iv) read with Sections 36-A and 2 (o) of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) charging the respondent with adoption of and /or indulgence in restrictive and/or unfair trade practices within the meaning of those terms as contained therein. According to the applicants/complainants, the claim of 2 times superiority of CDC-DP over any ordinary toothpaste is both false and misleading. They have, therefore, prayed for an enquiry proceeding into the matter and to pass a cease and desist order qua the advertisement both in the print and the visual media regarding the alleged claim of 2 times superiority of CDC-DP over any ordinary toothpaste. They have also taken out an application under Sec.12-A of the MRTP Act for an interim relief in the nature of the relief of permanent injunction restraining the respondent from making or continuing to make such claim in any manner and in any form of representation or advertisement. By an order passed by this Commission on 3rd July, 1998, a Notice of Enquiry (NOE) has been ordered to be issued making it returnable on 12th October, 1998. A notice as to the interim relief application was also ordered to be issued making it returnable on 29th July, 1998. In response thereto, the respondent has filed its reply and has resisted for the time being the interim relief application on various grounds. It has inter alia denied the charge of adoption of and/or indulgence in any kind of restrictive and/or unfair trade practices on its part qua its claim of 2 times superiority of CDC-DP over any ordinary toothpaste with respect to fight against germs and protection from germs that cause bad breath and tooth decay. It is the case of the respondent in its reply that it has made this claim only after carrying out intensive test studies and opinions of experts. According to the respondent, the claim of such superiority is based on extensive research and study conducted by it in various ways. The respondent has contended that no case, much less a prima facie case, has been made out for claiming any interim relief as prayed for by and on behalf of the applicants/ complainants in their interim relief application. The applicants/complainants have filed their rejoinder thereto and have controverted the claim made by and on behalf of the respondent in its reply. The respondent has filed its sur-rejoinder thereto again controverting some further claims made by and on behalf of the applicants/ complainants in their rejoinder.

(3.) It is difficult prima facie to agree with the submission urged before us by learned Counsel Mr. Andhyarujina for the applicants/ complainants to the effect that the advertisements in question claiming 2 times superiority of CDC-DP over any ordinary toothpaste would disparage toothpaste products manufactured by applicant/complainant No.1 under various brand names. The reason there for is quite simple.2 times superiorty of CDC-DP is claimed over any ordinary toothpaste without identifying such ordinary toothpaste in any manner. The word "ordinary" has to be understood in contra-distinction with the word special, uncommon, unusual, extraordinary and the like synonyms. The word "ordinary" is defined to mean customary, usual or normal; of the usual kind; not distinguished in any important way from others in New Webster's Dictionary of the English language at P.667. In Black's Law Dictionary (6th Edition) at P.1097 its meaning is given as "not characterised by peculiar or unusual circumstances". The word "ordinary" as an adjective would not refer to any particular or special item, product or thing.