The Court:- The litigation would relate to an advertisement that is offending the appellant-plaintiff. Both of them being high-mighty multinationals engaged in the same trade, would quarrel with each other in various Courts of the country with the sole object as to whether the one is offending its rival's products through advertisement.
The subject litigation would relate to bathing soaps having the brand name of “Lifebuoy” and “Dettol” manufactured by the appellant and the respondent respectively. The subject advertisement would give a message that Dettol would be 100% germ free action after use, compared to another soap while another soap is shown in the visual advertisement. The plaintiff would contend, it was nothing but a clear indication to “Lifebuoy” as would be visible in view of the elliptical design of the soap shown and that too, the red colour of the same. The appellant would claim, they are the registered design holder of the said soap. Moreover, the colour red is having a close nexus with the product for decades. It is common knowledge of every people, lifebuoy is red in colour.
Earlier, the appellant-plaintiff approached the Delhi High Court with a similar advertisement involving both the soaps. The appellant withdrew the suit with liberty to approach the Court afresh on fresh cause of action. The subsequent suit before this Court would relate to an advertisement that was not the subject matter of the Delhi proceedings. The learned Judge initially passed a blanket interim order stopping the advertisement. Subsequently, at the instance of the respondent His Lordship modified the order. The appellant has now come up as against the modified interim order dated July 10, 2012 (not included in the paper book, subsequently copy handed over in Court).
Mr. S. N. Mookherjee, learned Senior Counsel appearing for the appellant, would raise objection on two counts.
The learned Judge observed, since the Delhi High Court granted leave to file a fresh suit on a fresh cause of action, the present suit would be barred in absence of appropriate leave. The observation so complained of by Mr. Mukherjee is quoted below:
“I have seen the order of 8th September, 2011 of the Delhi High Court. Liberty was given to the plaintiff to file a fresh suit in case there was a fresh cause of action. Hence, in my opinion there was no leave to file a fresh suit for the selfsame cause of action.
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Therefore, the decision of the plaintiff to withdraw from the Delhi suit, also prima facie amounted to abandoning their claim that the red rectangular soap denoted their product ‘Lifebuoy’ to the ordinary and prudent customer.
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But this action of the plaintiff, in my opinion, precludes them from making the above claim with regard to the red soap.”
Referring to the observation quoted (supra) Mr. Mookherjee would contend, His Lordship failed to appreciate, the present suit would relate to a fresh advertisement that would require no previous leave being obtained from Delhi High Court. Moreover, the advertisement having the disparaging remark on the rival product, would have a continuing effect.
Mr. Mookherjee has also objected to the part of the order that directed modification of the advertisement. According to him, the Court of law should consider a particular advertisement and, if satisfied, would pass appropriate order stopping the same. It is not the duty of the Court to suggest modification. He prays for setting aside of the order of His Lordship.
Per contra, Mr. Sayantan Bose, learned Counsel appearing for the respondent, would dispute the submision made by Mr. Mookherjee. According to Mr. Bose, there was no intention on the part of the respondent to give any message to the rival product. He supports the judgment and order impugned.
We have considered the rival contentions. One cannot have monopoly over the colour red that the Division Bench held in APO No, 320 of 2012 (Eveready Industries India Limited v. Gillette India Limited) by the judgment and order dated December 13, 2012. Similarly, showing a product for comparison would ipso facto not be offending so long it would not give a clear message to the viewers to reasonably believe that the other product would belong to the complainant being a competitor and/or manufacturer of similar product.
There could not be any straitjacket formula to decide as to which advertisement would offend a rival competitor or complainant. The whole of the advertisement would have to be considered having a mind set as to who would be viewing the same that would have an adverse effect on the complainant.
On the first issue so raised by Mr. Mookherjee, we would find logic. When the advertisement in Delhi suit was admittedly a different one, it could not have any bearing with the present suit. Moreover, we find justification when Mr. Mookherjee would contend, the action of the like nature would have a continuing effect. We, thus, set aside the observation of His Lordship quoted (supra).
On the modification we do not wish to make any further comment. The respondent already changed its modus operandi. They are not broadcasting the advertisement complained of.
Hence, we do not wish to interfere. We treat the interlocutory application in our list and dispose it of accordingly by giving direction for expeditious hearing. Mr. Bose would pray for time to file written statement. We grant the respondent time till 2 weeks after reopening of the X'Mas vacation. Parties would be at liberty to disclose further documents, if any, within 2 weeks thereafter. Parties would be at liberty to approach the learned Single Judge taking suits, to fix an early date of hearing.
The appeal is, thus, disposed of without any order as to costs.