1. This order will dispose of the application filed by M/s. Win Medicare Ltd. (referred to as the complainant hereafter) under Section 12-A of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act in Ref) for grant of an ad interim injunction against the respondent namely, Reckitt and Coleman of India Ltd. which now stands renamed as 'Reckitt Benckiser India Limited'. The complainant has also filed a petition under Section 36-B(d) read with Section 36(A)(I), (vi), (x) and Section 2(o) of the MRTP Act alleging that the respondent is indulging in unfair trade practices as contemplated in the aforesaid provisions of law. A particular reference has been made in this regard to the false, misleading and deceptive advertisements in respect of Betadine Standardised Solution of the complainant vis-a-vis 'Dettol' of the respondent.
2. Win Medicare Ltd. is a company incorporate under the Indian Companies Act, 1956. It is engaged in the business of manufacturing and marketing medicines in India including Betadine Standardised Solution.
The respondent is also a company incorporated under the Indian Companies Act, 1956 but it has its parent company namely, Reckitt and Coleman Ltd., based in England. The respondent company is engaged in the business of manufacturing and marketing pharmaceutical preparations and Dettol is one of its antiseptic products. It is further stated that Betadine Standardised Solution is marketed in final form as per specifications of the Indian Pharmacopoeia and that it is supposed to be used without any further dilution.
3. It has been alleged that the respondent has misrepresented the efficacy of Betadine Standardised Solution through two advertisements published in the Journal of Indian Medical Association (JIMA). In one of these advertisements which is stated to have been published in the March, 2000 edition of JIMA (copy at Annexure 'A' of the complaint) a chart is given to compare the relative efficacy of various products including Betadine. The impugned advertisement is reproduced below:
4. The above advertisement is claimed to have relied on an article by A. Wood and D. Payne published in the Journal of Hospital Infection, 1997. The complainant has, however, expressed doubts about the authenticity and the year of publication of this article. It is stated that an article by these authors had appeared in the 1998 edition of the Journal. It is further stated that one of the authors of the article namely, D. Payne is associated with Reckitt and Coleman which is a fact omitted from the brochure. The other advertisement impugned by the complainant has been enclosed as Annexure 'B' of the complaint.
It brings out a chart to compare the relative efficacy of Betadine Standardised Solution vis-a-vis Dettol in certain concentrations. We do not consider it necessary to go further into the details of this advertisement because the learned senior counsel Shri A.N. Haksar has denied respondent's association with the said advertisement.
5. The complainant's contention is that the comparison given in the impugned advertisement is not applicable to any of the brands of the Betadine. Inclusion of Betadine in the chart, therefore, is creating confusion about its efficacy as against Dettol. The respondent is falsely representing that while Dettol is of a particular standard, quality, grade and composition, Betadine is not. The aim of the respondent is to portray Betadine in poor light by falsely representing that the strength and efficacy of Dettol is far superior to that of Betadine. It has been further submitted that the said act of the respondent is motivated by the intention to mislead doctors, members of the trade and consumers alike about the efficacy of Betadine. It has been added that by publishing such advertisements the respondent is willfully and deliberately trying to promote the sale of its own product by disparaging the product of the complainant. Finally, it has been alleged that the misleading advertisements and false representations made therein constitute an unfair trade practice within the meaning of Section 36-A(1)(i), (vi) and (x) of the MRTP Act.
6. The above, in a nutshell, is the case of the complainant. For the present, however, we are concerned only with the interim relief application of the complainant without going into the merits of the whole case.
7. In the interim relief application, the complainant has reiterated the facts detailed in the complaint petition. In addition, it has been contended that a strong prima facie case is made out against the respondent and that the complainant is likely to succeed on merits. It is further stated that the balance of convenience is also in favour of granting injunction. Finally, therefore, it has been prayed that, in the interest of general public and in the interest of consumers, an interim injunction restraining the respondent from continuing with the impugned advertisements and from making false and misleading claims in future may be granted.
8. In its reply to the interim relief application, the respondent has denied the allegations made by the complainant. The complainant has, however, filed a rejoinder to the reply of the respondent. With these pleadings on record, arguments on the interim relief application were heard on 04.10.2001.
9. Learned Senior Counsel for the complainant Shri Sudhir Chandra Aggarwal urged that out of four parameters adopted for comparing different products in the advertisement, Betadine has not been tested in respect of three and, therefore, the comparison loses its relevance.
It is contended that the respondent has done it with a view to disparaging Betadine. The comparison creates an impression that the researcher has actually compared the efficacy of Betadine with that of Dettol and had found favour with Dettol as it scored the highest number of tick-marks which stand for successful as against only one of the Betadine. The said advertisement he added, is also questionable on the ground that relative efficiency of Betadine against other products has been represented without mentioning the fact that Betadine is a Standardised Solution and that it is sold in diluted form and, hence it does not require any further dilution which other products do. Dettol, for instance, is marketed in a concentrated form and it is supposed to be diluted in varying degrees depending on the use. To highlight about the efficacy of Betadine, it has been stated the Betadine Standardised Solution kills all classes of micro-organisms, including MRSA when used in the recommended dosages. The advertisement, however, omits to mention this fact. Learned counsel for the complainant also pointed out that the footnote at the bottom of the table which explains what the symbols stand for, is given in very small print whereas the rest of the advertisement is in bold print. In view of this, the learned senior counsel for the complainant Shri Aggarwal concluded that the impugned advertisement makes a misleading representation about the efficacy of Betadine qua Dettol and that the same amounts to disparaging the product of the complainant. In support of his contentions he referred to the ruling of the Hon'ble Supreme Court in Mis. Lakhanpal National Ltd. v. M.R.T.P. Commission and another, AIR 1989 Supreme Court 1692.
Finally, he prayed for grant of an ad interim injunction so that the complainant does not suffer any further loss.
10. Learned senior counsel for the respondent Shri A.N. Haksar, on the other hand, advanced the plea that the representation made in the impugned advertisement does not amount to disparagement because it is factually correct which is evident from the footnote given at the bottom of the table. He further submitted that for a representation to be disparaging, it should necessarily be false and incorrect. To buttress his argument, he invited our attention to the order of this Commission in Parke , Davis (India) Ltd. and Another v. VSV Ltd., [UTPE 150/98] in which, it is, inter alia, observed that 'to show the disparagement of any product, it is necessary to show that the guilty party has made a false and incorrect statement and that such false and incorrect statements has been made maliciously with the intention of deprecating or belittling the product of the party.' He also made a reference of para 48 of the ruling of the Hon'ble Supreme Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., AIR 1999 Supreme Court 3105, which is reproduced below:
"48. As a matter of fact there is no evidence of a single consumer being misled and not a whisper as to what constitute an unfair trade practice pertaining to "Suraksha Chakra".
The Commission also thought it fit not to record any reason or justification for the grant of an interim order of injunction in spite of finding as above and before the matter is investigated and complaint is finally heard. This apart, the factum of non-availability of any explanation of more than 13 years' delay has also not been delved into by the Commission at all."
11. We have carefully considered the submissions made by the learned senior counsel for the parties and have also perused the pleadings on record. The respondent having denied its association with the advertisement referred to at Annexure 'B' of the complaint, the bone of contention is now confined to the advertisement at Annexure 'A' which has been reproduced in the earlier part of the order.
12. There is no doubt or dispute as to the fact that the tabular representation made in the impugned advertisement is factually correct in that it conforms to the explanation given in the footnote of the table. The short question, therefore, is whether a factually correct statement can also be misleading and disparaging as contemplated in Section 36-A(1)(x) of the MRTP Act. Our answer to this is 'Yes' for reasons to follow.
13. The question whether a factually correct statement can also be misleading has been eloquently answered in para 7 of the ruling of the Hon'ble Supreme Court in Lakhanpal National Ltd. 's case (supra). The relevant portion of para 7 of the aforesaid ruling is reproduced below: "The issue cannot be resolved by merely examining whether the representation is correct or incorrect in the literal sense. A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language. Similarly a statement, which may be inaccurate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct statement. It is, therefore, necessary to examine whether the representation, complained of, contains the element of misleading the buyer.......Another way of stating the rule is to say that substantial falsity is, on the one hand, necessary, and, on the other, adequate, to establish a misrepresentation" and "that where the entire representation is a faithful picture or transcript of the essential facts, no falsity is established, in though there may have been any number of inaccuracies in unimportant details. Conversely, if the general impression conveyed is false, the most punctilious and scrupulous accuracy in immaterial minutiae will not render the representation true."
14. From the above ruling, it is abundantly clear that even a technically correct statement can be misleading. It all depends on the manner of presentation and the language used. A close look at the impugned advertisement reveals that the main message is conveyed to the readers through the medium of symbols namely, the tick-mark ( j, the cross (x) and the dash (-). At the bottom of the table, it is explained that tick-mark stands for 'successful', cross stands for 'failed' and dash for 'not tested'. There is no denying the fact that whereas the main body of the advertisement is in bold print, the footnote at the bottom of the table is in very small print. Further, it is also common knowledge that in a tabular representation, the reader generally forms his first impression by the symbols used in the table without rushing to their explanations given elsewhere. The three and the highest number of tick-marks awarded to Dettol on the face of it, show that in respect of the various parameters used to demonstrate the efficacy of the products tested, Dettol is superior to Betadine. Further, the impugned advertisement also suffers from concealment of a vital fact that Betadine is a Standardised Solution whereas Dettol is sold in concentrated form. We also cannot ignore the fact that out of the four parameters used, Betadine has been tested only for one and, therefore, truly speaking the two are incomparable till Betadine is also tested for the remaining three parameters. The title of the advertisement is also worthy of note. It reads as follows:
"Ability of antiseptics/disinfectants to Inactivate viruses within 1 minute" Results as shown in the table under the above title are bound to prejudice the readers as far as Betadine is concerned. In our view it is totally senseless to include a product for comparison without testing it for all the specified parameters in the chart.
15. From the facts and circumstances discussed above, we are of the view that a prima facie case of unfair trade practice as contemplated in Section 36-A(1)(i), (vi) and (x) of the MRTP Act is made out against the respondent for the purpose of the present application for interim injunction.
16. We do not agree with the contention of the respondent that the impugned advertisement cannot have any impact on the common consumers because the circulation of the Journal (JIMA) in which the impugned advertisement has been published is confined only to doctors and others connected with medical profession. In the said Journal, under the title About JIMA it has been stated as follows: "JIMA not only reaches over 1 lac copies for medical professionals, but also for Go
Please Login To View The Full Judgment!
vernment Institutions, NGOs and International houses, Banking, Insurance Companies, Visa and Master Card Holders, Airways, Holiday Resorts, Textile Industries, Books and others, besides Overseas Medical Colleges and other Institutions." From the above, it is evident that JIMA has a fairly widespread circulation and it reaches the outlets where it can be easily accessible to the common consumer? 17. The ruling of the Hon'ble Supreme Court in Colgate Palmolive cited by the counsel for the respondent also does not come to his rescue because the facts and circumstances of that case were different from those of the instant case. It is the ruling of the Hon'ble Supreme Court in Lakhanpal's case that really hits the nail on the head. 18. It is an open secret that such advertisements are aimed at boosting the sale of the product that is favourably shown in the advertisement. Conversely, they adversely affect the sale prospects of the products which are not favourably shown in the advertisements. Hence, the balance of convenience also appears to be in favour of the complainant. If such an advertisement is allowed to go unchecked, it may understandably cause irreparable loss to the complainant. 19. In view of the facts and circumstances discussed above, the application of the complainant for grant of an ad interim injunction deserves to be and is hereby accepted. The respondent is restrained from publishing the same or similar advertisements with immediate effect, till the disposal of the complaint petition.