Allowed

Reckitt Benckiser (India) Pvt. v. Gillette India Ltd.

Madras HC10 Nov 2017OA/977/2017

Case brief

AI extract

What is this about?

A razor advertisement was challenged for disparaging depilatory creams and an identifiable rival product. The court found prima facie disparagement and made the existing injunction absolute. Its findings were confined to the interim applications and would not bind the trial.

What did the court decide?

The existing injunction against the offending advertisement was made absolute pending trial.

Reckitt Benckiser (India) Pvt. Vs Gillette India Ltd. — Intellectual Property | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 10TH DAY OF NOVEMBER 2017 THE HON'BLE DR. JUSTICE ANITA SUMANTH

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O.A. Nos.977 to 981 of 2017

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C.S. No.768 of 2017

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Reckitt Benckiser (India) Pvt. Limited Rep by its Authorised Signatory Mr.Rajesh Kumar Jha, Having its registered office at 227, Okhla Industrial Estate, Phase-III Okhla, New Delhi-110020. ... Applicant/Plaintiff

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(in all Original Applications)

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-Versus-

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Gillette India Limited, Rep by its Managing Director The manor, 3-B, 3rd Floor, 31/14 A, College Road, Thousand Lights, Chennai-600 006, Tamil Nadu. ... Respondent/Defendant (in all Original Applications)

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O.A. No.977 of 2017:-

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O.A. No.978 of 2017:-

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Original Application praying that this Hon'ble Court be pleased to pass an order of ad-interim Injunction restraining the Respondent/Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisee, representatives and assigns from Issuing or telecasting the impugned advertisementor in any other manner disparaging the goodwill and reputation of the Applicant/Plaintiff and its product sold under the trade mark VEET in any other advertisements and in all media whatsoever including the electronic media, social media and/or print media or making comparison, importing direct or indirect reference to hair removal creams, thereby conveying a message to the public that the hair removal creams are harmful to the skin or contains chemicals that are harmful to the skin or in any other manner whatsoever denigrating the hair removal creams pending disposal of the suit.

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O.A. No.979 of 2017 :-

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Original Application praying that this Hon'ble Court be pleased to pass an order of ad-interim Injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from issuing or telecasting the impugned advertisement, the story board of which is filed as Plaint Document No.8 in any language or issuing any other advertisement which is in any manner disparaging the goodwill and reputation of the Plaintiff and its product sold under the trade mark VEET in any other advertisements and in all media whatsoever including the electronic media, social media and/or print media pending disposal of the suit.

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O.A. No.980 of 2017:-

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O.A. No.981 of 2017 :-

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These Original Applications coming on this day before this court for hearing the court made the following order:-

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Original Application No.977 of 2017 has been filed by the applicant, Reckitt Benkiser (India) Pvt Ltd (in short ‘Reckitt’) seeking an order of interim injunction restraining the respondent Gillette India Limited (in

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short ‘Gillette’) from infringing its registered design bearing No.193988.

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Original Application No.978 of 2017 is filed by Reckitt seeking an order of interim injunction restraining Gillette from issuing or telecasting the impugned advertisement or in any manner disparaging its goodwill and reputation or its product sold under the trade mark 'VEET' in advertisements and media including the electronic media, social media and/or print media or making comparison, importing direct or indirect reference to hair removal creams, thereby conveying a message to the public that the hair removal creams are harmful to the skin or contains chemicals that are harmful to the skin or in any other manner whatsoever denigrating the hair removal creams.

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Original Application No.979 of 2017 is filed by Reckitt seeking an order of interim injunction restraining Gillette from issuing or telecasting the impugned advertisement, the story board of which is filed as plaint document No.8 in any language or issuing any other advertisement which is in any manner disparaging its goodwill and reputation and its product sold under the trade mark 'VEET' in advertisements and media including electronic media, social media and/or print media.

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Original Application No.980 of 2017 is filed by Reckitt seeking an order of interim injunction restraining

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Gillette from using the depiction of its product or any other similar product in its advertisement or in any other manner disparaging its goodwill or reputation and its product sold under the trade mark 'VEET'.

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Original Application No.981 of 2017 is filed by Reckitt seeking an order of interim injunction restraining the respondent from using any other indicia whatsoever to associate with/depict Reckitt or its products in its advertisements issued in any and all media whatsoever including the electronic media.

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Gillette has filed counters to the applications and affidavits in reply have been filed by Reckitt. Written notes of submission as well as a CD containing the alleged disparaging advertisement have been circulated for the consideration of the court.

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The challenge in these applications is to an advertisement that, according to Reckitt, disparages its product, a depilatory cream, called VEET. The rival contentions of Mr.Chander M.Lal and Mr.Sathish Parasaran for Mr.R.Saravanakumar, appearing for Reckitt and Mr.P.S.Raman and Mr.Arunsiwach for Mr. C.Saravanan appearing for Gillette are summarized below:

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Reckitt is a subsidiary of the Reckitt Benckiser Group Plc. and its business operations involve the manufacture of and trading in health care and home hygiene products under several well known trademarks such as

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DETTOL, HARPIC, MORTENE, VANISH, ITCHGUARD, MOOV, DECOLD, VERMOCOOL, CRACK, RING GUARD, VEET and others. The applicant claims to be a world leader in cosmetic depilatories and markets a range of products delivering, according to it, advanced and superior depilatory solutions. One of such brands is 'VEET' sold by the Reckitt Benckiser Group in over 50 countries worldwide and registered for protection of intellectual property right in 140 countries.

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Substantial investment has been made by Reckitt in India and the world over towards protection, promotion and advertising owing to which the brand has acquired immense reputation and good will. Reckitt has sought and obtained protection for the word mark 'VEET' that comes within the definition of a well known mark. It has also obtained registration on 5.12.2003 valid till 5.12.2018 for the design of the ‘S’ shaped spatula accompanying the product and with which the product is associated throughout the globe.

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The present applications challenge an

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advertisement released by Gilette that Rickett claims is severely disparaging and detrimental to its interests. The hair removal cream that is disparaged is, according to Reckitt, clearly VEET. The advertisement contains untrue and incorrect material and mis-informs the viewer about hair removal creams in general and VEET in particular. The

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advertisement that was published in the print media initially has now been released in multiple television channels. The advertisement shows a spatula that is the product of Reckitt. The design and appearance of the spatula is identical to the spatula marketed by Rickett along with VEET and portrayal of the same in the advertisement is a clear reference to VEET itself, apart from the objectionable manner of display. The above, briefly summarizes the submissions of Reckitt.

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Gillette is a subsidiary of Procter and Gamble

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Company USA (P&G). Pursuant to acquisition of Gillette Company USA by P & G in 2005, it became vested with all trademarks owned by P & G including the mark ‘VENUS’. Gillette has been at the heart of men’s grooming for over a century and forayed into women’s grooming since 2015. Gillette is engaged in manufacture and sale of a disposable razor for women under the brand 'SIMPLY VENUS' that presently enjoys 75% of the market share in the category of women’s razors.

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The defence put forth by Gillette, being three fold and the objections of Reckitt thereto, are as follows:

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Firstly, that the advertisement does not make

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specific reference to VEET and the products shown are merely tubes and jars of varying shapes and sizes. The advertisement is generic, according to Gillette, and

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addressed a class of products and not specifically VEET. Reckitt would deny that the advertisement was only generic pointing out visuals of the product as well as the spatula used which is clearly its own product. In fact the spatula itself has been the subject of a round of litigation and has been held to be specific to the applicant by the Delhi High Court in its decisions dated 14.12.2015 and 23.08.2016. The Single Judge of the Delhi High Court has directed that Gillette use a spatula of a different colour to distinguish from the pink spatula used by the applicant seeing as the style and appearance of the product was identical.

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Secondly, the contents of the advertisement constitute the truth in as much as the narration in the advertisement speaks about the use of Urea and Thioglycolic Acid (TG Acid). According to Gillette, all depilatory creams in general use the aforesaid ingredients, a fact borne out from the list on the packaging of VEET as well. The truth is a complete defence in itself and in the light of overwhelming materials in public domain to establish the harmful nature of the creams, the advertisement stands vindicated simply because it projects the truth of the matter. Moreover, the advertisement nowhere uses the word 'harmful' but merely projects a set of circumstances and facts that are scientifically and factually proven. The formulation of

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VEET admittedly contains urea and TG acid and Gillette would point to the Material Safety Data Sheet on the website of Rickett that categorizes TG acid and urea as hazardous substances in several states in the United States of America.

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Thirdly, the purpose of the advertisement is stated to be educational and intended to inform the consumer about the merits and demerits of depilatories vis-à-vis razors. According to Gillette the advertisement presents a fair comparison between the two products intended solely to inform the consumer and nothing more. All in all, the attempt of Gillette is, according to it, to serve a public cause.

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The Story Board of the advertisement has been circulated and the advertisement played for the Court. Interestingly, 24 out of 30 seconds that comprises the full advertisement narrated text/displayed visuals relating to depilatory creams and only six seconds were devoted to references to razors.

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Having viewed the advertisement and analysed the story board, it is clear that the thrust of the advertisement is more to address the alleged vices of depilatory creams rather than the virtues of razors. The story board proceeds thus:

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The advertisement opens with the setting of a dark boxing ring. The narrator states ‘Let's silence the comments and the compromises.’

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The protagonist is shown entering the boxing ring and says ‘Let's call out the hair removal creams that come in all sizes....Tall, thin, short, even the 10 and 20 grams sort.’

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The protagonist walks carefully into a room full of mannequins holding depilatory creams, one of which is in a pink and white tube, identical to VEET.

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One of the mannequins holds a spatula identical in shape and configuration to the spatula accompanying VEET which enjoys statutory design protection.

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The protagonist, holding a magnifying glass, closes up on the tube of depilatory cream with the ingredients marked thereon being UREA, TG ACID and other STRONG CHEMICALS.

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Thereafter, the protagonist states “So open your eyes... read before use ... Don't squeeze, don't

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spread, don't repeat the abuse.”

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The camera zooms in from the cream to a cloud of chemicals portraying a reaction on the skin after application of the cream.

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The advertisement then depicts a pond full of chemicals with smoke emanating from the pond. The protagonist is shown walking very carefully on stones in the pond stating “Urea and chemicals is strongest bathroom

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cleaners’ and entering a bathroom and saying “Oh yes! Hair removing creams are filled with it”.

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The writing on the screen states ‘Based on analysis and technical tests which shows pH levels as high as 12 on account of some ingredients in hair removing creams’.

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The protagonist then swipes tubes of cream from a counter stating ‘So do yourself a favor.. get some care for your curves.’ The protagonist is then shown using a razor and while walking from an acidic floor to fresh green grass states ‘coz its love not strong chemicals you need’.

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The advertisement then ends with a screen showing the defendant's VENUS branded razor and a message “NO TO STRONG CHEMICALS. Yes to smooth skin.”

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The argument that 'VEET' was not specifically identified in the advertisement and that the same was generic in nature is not acceptable for the reason that the products identical to tube of VEET as well as the pink spatula do find place in some of the screen shots as extracted above. In any event, in so far as the attack is clearly and admittedly on depilatories in general, in respect of which Reckitt holds 48.9% market share, even an indirect reference to the product would be sufficient to constitute disparagement. A casual viewing of the advertisement makes it apparent that a tube/spatula

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deceptively similar to the rival product was displayed in four frames.

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The following decisions conclude that there was

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disparagement of a rival product even if the product sought to be disparaged could be identified only by indirect parameters such as the colour, shape, size, contour, packing or specific features associated with the product:

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Reckitt Benckiser (India) Ltd. vs. Hindustan Lever Ltd. (MANU/DE/0967/2008)

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Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd. 200 (2013) Delhi Law Times 563

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Hindustan Lever Ltd. v. Colgate Palmolive (I) Ltd. (AIR 1998 SC 526)

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Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd.

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[(1996 (16) PTC 393 (Del)]

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5.Heinz India P. Ltd. v. Glaxo Smithkline Consumer Healthcare Ltd. (MANU/WB/1101/2009)

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6.Eveready Industries Ltd. v. Gillette India Ltd. [(2012) 3 CALLT 286 (HC)]

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7.Reckitt & Colman of India Ltd. v. M.P.RamChandran and another (1999 PTC (19) 741)

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8.Pepsi Co., Inc. v. Hindustan Coca Cola Ltd. [(2003 (27) PTC 305 (Del) (DB)]

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9.KaramChand Appliances P. Ltd. v. Sh. Adhikari Brothers [2005 (31) PTC 1 (Del)]

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10.Annamalayar Agencies v. VVS and Sons Pvt. Ltd. [2008 (38) PTC 37 (Mad)]

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11.Paras Pharmaceuticals Ltd. v. Ranbaxy Laboratories Ltd. [AIR 2008 Guj 94]

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12.Unibic Biscuits India Pvt. Ltd. v. Britannia Industries Limited [MIPR 2008 (3) 347]

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13.Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd. [MIPR 2010 (3) 314]

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14.Reckitt Benckiser (India) Ltd. v. Naga Ltd. [104 (2003) DLT 490]

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15.Frankfinn Aviation Services Pvt. Ltd. v. Akash Gupta [2010 (42) PTC 294 (Del)]

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16.Godrej Consumer Products Ltd. v. Initiative Media Advertising [2012 (114) BOMLR 2652]

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A long line of decisions also conclude that there was disparagement in cases where the advertisement was clearly targeted as a specific attack notwithstanding that the product may not have been named. They are:

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1 .Hindustan Lever Ltd. v. Colgate Palmolive (I) Ltd. (AIR 1998 SC 526);

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2.Colgate Palmolive Company v. Hindustan Unilever Limited [2014 (206) DLT 329];

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3.Hindustan Unilever Ltd. v. Proctor and Gamble Home Products Ltd. [2010 (43) PTC 460];

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4.Dabur India Ltd. v. Colortex Meghalaya Pvt. Ltd. And Godrej Sara-Lee [167 (2010) DLT 278];

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5.Dabur India Limited v. Colgate Palmolive India Ltd. [AIR 2005 Delhi 102];

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6.Reckitt and Colman of India Ltd. v. Kiwi T.T.K. Ltd.

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[(1996 (16) PTC 393 (Del)];

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7.Reckitt & Colman of India Ltd. v. M.P. Ramchandran & another [1999 PTC (19) 741];

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8.Reckitt & Colman of India Ltd. v. Jyothi Laboratories Ltd. [(1999) 2 CALLT 230 (HC)];

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9.Eveready Industries Ltd. v. Gillette India Ltd. [(2012) 3 CALLT286 (HC)];

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10.Heinz India P. Ltd. v. Glaxo Smithkline Consumer Healthcare Ltd. [MANU/WB/1101/2009];

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11.Karamchand Appliances P. Ltd. v. Sh. Adhikari Brothers [2005 (31) PTC 1 (Del)];

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12.Annamalayar Agencies v. VVS and Sons Pvt. Ltd. [2008 (38) PTC 37 (Mad)];

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13.Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd. [200 (2013) DLT 563];

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14.Reckitt Benckiser (I) Ltd. v. Cavin Kare Pvt. Ltd. [2007 (35) PTC 317 (Del)];

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15.Dabur India Limited v. Emami Limited [112 (2004) DLT 73] ;

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16.Colgate-Palmolive (India) Limited v. Anchor Health and Beauty Care Private Ltd. MANU/TN/0980/2008 ;

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17.Eureka Forbes Ltd. v. Pentair Water India Pvt. Ltd. [2007 (35) PTC 556 (Karn)];

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18.Hindustan Unilever Ltd. v. Gujarat Co-operative Milk Marketing Federation Ltd. [unreported judgment delivered on June 16, 2017 in Notice of Motion (L) No.960/2017 in Suit (L) No.204/2017] ;

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A detailed perusal of the above line of cases reveals that courts have consistently upheld the allegation of disparagement even in those cases where the reference to the rival product is indirect, subtle or convoluted. In this context the Bombay High Court in Hindustan Unilever Limited vs. Gujarat Co-operative Milk Marketing Federation Ltd and others (Notice of Motion (L) No.690 of 2017 in Suit (L) No.204 of 2017), holds as follows:

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'In its said decision the Court (Karamchand Appliances Pvt. Ltd. vs. Shri Adhikari Brothers and others 8, 8 . 2005 (31) PTC 1 Del) has also observed that since there is no cut and dry formula to decide whether or not the goods of a trader or manufacturer are disparaged or not and would depend on the facts and circumstances of each case, all that the Court need to be conscious of is that while disparagements may be direct, clear and brazen, they may also be subtle, clever and covert'.

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I do not proceed to deal with each of the cases cited above as, at the end of the day, it is the eye and the ear that are the best Judges of whether the advertisement is disparaging of the applicants' product. In the present case, the advertisement displays a tube identical to 'VEET' in colour combination, form and appearance in three frames. The spatula displayed is also similar to that of Reckitts’ in appearance, save for the fact that it is blue in colour. The narrative is explicit to the effect that hair removal creams are hazardous to health and better avoided. References are made to TG Acid and Urea that, while admittedly used as ingredients in depilatories, are projected in the advertisements to be used in excess of permitted limits. This is the obvious inference from the comparison with bathroom cleaners with higher ph levels than the hair removal creams.

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Courts have consistently held that while it is permissible to glorify one’s own product and engage in ‘puffing’ thereof, slander of a product is impermissible. This, in my view, is what has been engaged in in the present case. Quite apart from the references to the hazardous effect of the chemicals used and the manner of presentation of the visuals itself, the information presented in regard to the ph levels of depilatories being equal in strength with that of a bathroom cleaner also, prima facie, appear to be incorrect. In any event, the overall and lasting image that is created is one where the viewer comes to doubt the safety in using depilatory creams.

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Then again, the pH of a depilatory cream, indicating its acidity/ alkalinity, is projected to be in excess of acceptable levels for use. A test report issued by a private laboratory reveals that the pH of all brands of depilatories is in the range of 10 to 12.5. This piece of information, seen in the light of the fact that a floor cleaner contains a pH of 13.1, is used to illustrate the harmful nature of hair removal creams in general. Reliance is also placed on a report of a Danish Environmental Protection Agency, which, while referring to chemical depilatories, observes that TG Acid is ‘toxic’ and cautions in general about the use of substances with high PH value. A consumer update issued by the United States

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FDA contains a note of caution that the instructions on depilatory creams should be heeded carefully emphasizing yet again the harmful nature of the product in general. The recommendation cautions against indiscriminate use and emphasizes that the directions printed on the product be carefully followed. While relying on the aforesaid reports to buttress its submission that it was only projecting factual information in the advertisement, Gillette would also point out that not all sachets of VEET contain a label with the mandatory statutory warning. This allegation is dispelled by Reckitt producing samples of the product with the packaging containing the mandatory caution as well as instructions for use.

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For its part Reckitt would point out that its product was being marketed only subsequent to an approval granted by the Bureau of Indian Standards (BIS). The extract of the specifications for chemical depilatories have been circulated to show that all the parameters thereof have been satisfied by the applicant in full. Clause 3.3 of the BIS specifically contains a note of caution as under that has been carried over by the applicant on the product packaging.

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3.3 Caution – The following instructions shall appear on the container or on the leaflet which shall be supplied with the pack:

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a) never use the material on inflamed or broken skin or near eyes. Should this occur, wash with lukewarm water and rinse with boric acid solution (approximately 3 percent)

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b) If used for the first time, carry out the following ‘put-on’ test:

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Put-on test – Use a little hair remover over 5 cm2 of skin on inner elbow. If 24 hours later, the skin is normal, the material may be safely used.

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A comparison of the cautionary note in the BIS

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and on the product itself as well as the packaging will bear this out. The BIS tabulates the requirements for chemical depilatories and the prescribed pH is to be in the range of 11 to 12.7 to both of which 'VEET' conforms.

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The third argument, that it is meant only as an educational tool and one to serve the public cause of educating the public, is an interesting one. No doubt it is incumbent upon industry to inform the general public about the dangers or hazards of products and educational campaigns in this regard are laudable and welcome. The true test however is to see whether the purpose of an advertisement is mere education or disparagement in the name of education. The advertisement in its present form devotes a mere 6 seconds out of 30 to the promotion of razors. The first 24 seconds relate exclusively to ‘information’ relating to depilatory creams. I have already noted that the advertisement projects the packaging of 'VEET' itself in some frames. When the Court

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had, in the initial hearing expressed the view that an advertisement that utilises only 6 out of 30 seconds to promote its product is too lopsided to be a bonafide attempt at advertising, the respondent came out with a marginally modified version that also, in my view, does not make the cut.

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Moreover, while educating the public is a welcome measure, the information disseminated should be carried in a manner that is scientific and true and not slanderous.

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In Kaleesuwari Refinery Pvt. Ltd. v. M.K.Agrotech Pvt. Ltd (2016 SCC Online Madras 2966), this Court has held as follows:

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'24.Truth is always a defence in an action for libel. Such being the position, it would not be possible to injuct the respondent. It is more so on account of the materials produced by the respondent to show that the claim made in the advertisement was supported by relevant materials. I, therefore, do not find any reason to injuct the respondent, pending disposal of suit.'

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In the present case, Gillette has placed on record material to establish that TG Acid is an ingredient that is to be used with caution. So be it. However the insinuation in the advertisement is that it is a substance used only in the harshest cleaning materials not fit for use in products intended for use on one’s person. This is

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clearing a twisting of facts and not a faithful representation of science. Then again, urea, as an ingredient does not find place in the list of harmful substances as tabulated by the BIS.

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Courts have often applied the theory of ‘dominant purpose’ to determine the true purport of an enactment. This test is equally applicable to determine disparagement as well and if applied to the present case would clearly point to the offending advertisement as being an attempt to bring down a rival product rather than promote one's own. The purpose of an advertisement is primarily to promote a product and provide information in relation thereto. Any other information relevant to such promotion can only be incidentally and peripheral, at best. The thrust of an advertisement has thus to be on the virtues of the product being advertised rather than the vices of rival products, even assuming that such projected vices are scientific and true. A balance has to be struck between the two factors and this, in my view, will be the test to determine whether the advertisement impugned in the present case is ‘informative’ or ‘disparaging’.

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The test of dominant purpose has been oft applied in various branches of the law to determine the true purport or import of an act or a set of circumstances. The word ‘advertisement’ has to be understood in the popular

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sense to connote ‘notice given in a manner designed to attract public attention’ . Seen in the context of a commercial entity, such notice will be in respect of its product or service.

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The Constitutional Bench of the Supreme Court in the case of Allenbury Engineers and others vs Ramakrishna Dalmia and others (AIR 1973 SC 425) was concerned with the validity of a notice in terms of section 106 of the Transfer of Property Act that required notice of one month to be given for vacating of property under license except if the operations were of the nature of manufacturing in which case notice of six months was to be given. The issue of thus whether the operations carried on was of the nature of ‘manufacturing operations’ or not was concluded by the Bench applying the dominant purpose test as follows:

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The expression ‘manufacturing purposes’ in s. 106 is used in its popular and dictionary meaning., the Transfer of Property Act not having supplied any dictionary of its own for that expression. The burden of proving that the lease was for manufacturing purposes, must for the purposes of s. 106 of the Transfer of Property Act, lie on the party who claims it to be so, in. the present case the appellant company. That burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose. (See C. Mockertich v. Steuart &. Co. Ltd).

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A Full Bench of this Court in T. Dakshinamoorthy

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Vs. Thulja Bai & Anr. (AIR 1952 Madras 413) was considering the provisions of section 7(3) of the Madras Buildings (Lease and Rent Control) Act that provided for the Controller to direct a tenant to put the landlord in possession of a residential property where the landlord did not own an alternate residential property in the concerned city/town/village. The Bench was concerned with the interpretation of the term ‘residential property’, not defined in the Act. The Bench held that the use of the property in that case involved mixed facts and that various parameters would have to be applied in determining the true nature of the property. One of the tests was the test of dominant purpose that would aid in the determination of the true character of the property. The Bench had the following to say in this context:

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It is true that the test of dominant purpose and principal user is not always easy of application. Applied certainly it can be, speaking generally, though with some difficulty in some cases. Such difficulty in the actual application of the test in such cases will only mean that a margin of judicial discretion in the matter of the determination of the question of the character of the building as a question of fact has necessarily to be allowed for. Instances of transactions Inspired By mixed motives and intents in which the question of

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the main, real and dominant motive and intent has to be canvassed for validating or invalidating them are not uncommon in other branches of law. There can in our judgment be no reason or principle why a canvass of the main, real and dominant purpose should be regarded as not legitimate in this branch of law in cases where the letting is actuated by mixed purposes.

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The Supreme Court in Precision Steel &

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Engineering Works & Another vs Prem Deva Niranjan Deva Tayal ((2003) 2 SCC 236) applied the dominant object test in the context of section 14(1)(e) of the Delhi Rent Control Act 1958 in determining whether a property was to be classified as residential or commercial, referring to the observations of the Full Bench (supra) and stating thus:

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In our opinion, for the purpose of Section 14 (1)(e) of the Act, so long as the principal and dominant purpose of letting is residential merely because a mixed user of the premises or user of a part or incidental or ancillary user of the premises is permitted for activities other than residential, the purpose of letting the premises would not cease to be residential and the premises would continue to be governed by Section 14(1)(e) of the Act.

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A similar conclusion was arrived at M.M.Ismail, J (as he then was), in V. Balakrishna Menon vs M.A.K. Govindan (1978 (1979) 1 MLJ 237) in the context of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

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The test has also been applied in the context of the Income tax Act by a seven judge Bench of the Supreme Court in Additional Commissioner of Income Tax, Gujarat, Ahmedabad vs Surat Art Silk Cloth Manufacturers' Association, Surat (101 ITR 234). The Bench was interpreting the provisions of section 2(15) of the Income tax Act defining the term ‘charitable purposes’ . The Bench held that one of the important parameters to determine whether the assessee was engaged in advancement of charitable purposes or profit earning activity was to examine the dominant purpose or real activity engaged in. The Bench recognises the position that there might be instances where the dominant activity will be accompanied by instances of other activities as well, not in the nature of the primary activity. In that case the two conflicting activities were of the nature of charitable activity and profit earning activity. In such a case, the Bench holds that ‘The test which has, therefore, to be applied is whether the object which is said to be noncharitable is a main or primary object of the trust or institution or it is ancillary or incidental to the

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dominant or primary object which is charitable.’ This ratio has been applied by a subsequent judgement of the Supreme Court in the case of Director Of Income Tax vs Bharat Diamond Bourse (179 CTR 225) also in the context of the Income tax Act.

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The application of the Dominant purpose test makes it evident that the advertisement sets out to tarnish the business and image of Reckitt over portraying the strength of Gillette's products. I have already discussed the advertisement in detail and expressed the prima facie view that the statements and visuals that it contains are clearly damaging to the interests of Reckitt. The dominant portion of the advertisement is devoted to focusing on the demerits of VEET and other depilatories. In the present case, Gillette has utterly failed to strike the balance required between promotion of one’s product and supply of relevant information to the public.

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I may also mention at this juncture that the Division Bench of the Delhi High Court in a matter involving the same parties as are before me now dealt with Gillette’s challenge to an advertisement released by Reckitt seeking to promote a depilatory cream, but instead denigrating Gillette’s product, a razor. Similar contentions as raised before me now were taken before the Delhi High Court. The Court found in favour of Gillette,

¶164

¶165

directing Reckitt to clarify that the razors used in the advertisement were men’s razors.

¶166

In the light of the discussion above, I conclude that the offending advertisement constitutes disparagement of depilatories in general and VEET in particular. The injunction granted earlier is made absolute. The matter will now go to trial before the Additional Master II. The conclusions arrived at above are merely for the purpose of disposing the interim applications. The observations made are prima facie in nature and shall not stand in the way of parties in trial.

¶167

//Certified to be a true copy//

¶168

Dated this the day of 2018

¶169

JJ 11/1/18 COURT OFFICER

¶170

From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.

Reckitt Benckiser (India) Pvt. v. Gillette India Ltd.

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Reckitt Benckiser (India) Pvt. v. Gillette India Ltd.

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