ITC Ltd. Vs. Reckitt Benckiser

Can a manufacturer of a disparaged product which though not identified by name, complain of and seek to injunct such disparagement?

In the recent case of ITC Limited (“Applicant/Plaintiff”) Vs. Reckitt Benckiser (India) Pvt. Ltd. (“Respondent/Defendant”), the Hon’ble High Court of Madras decides interim injunction against denigrating and disparaging advertisement.

The plaintiff manufactures NIMYLE floor cleaner. The respondent is the manufacturer of LIZOL floor cleaner.

The plaintiff filed Quia timet action suit with an application for exparte interim injunction against the respondent, mentioning that the respondent is likely to display an advertisement carrying denigrating and disparaging information about the plaintiff’s product NIMYLE. The Court declined the plaintiff’s request stating that the Court cannot restrain the right of expression in anticipation of defamation.

Few days later, the plaintiff again mentioned that the respondent had released a comparative advertisement using the plaintiff's bottle NIMYLE herbal. The advertisement suggests that the plaintiff’s product is ineffective and doesn't provide 99.9% germs protection or protection from Covid-19 virus. The advertisement further suggests that it requires 3/4th litres of herbal liquid to give 99.9% germs protection. The plaintiff filed a suit submitting that the said advertisement is contrary to honest practice in Industries.

The advertisement conveyed the message that the herbal floor cleaner which is in green colour will not kill 99.9% germs if 2-3 capfuls of the same is added with water in 1:5 ratio. Further, in order to get the desired results, one has to add 800 ml of herbal cleaner in ½ a bucket of water i.e., around 4 litres of water. The advertisement further conveyed the following message “choose smartly, keep your family safe buy LIZOL”.

The Court opined that the impact on the viewers of the advertisement will be that the herbal cleaners which are green in colour found in a particular shape of bottle will not kill 99.9% germs. It requires more liquid to have any effect when compared with the respondent’s product LIZOL.

The court holds that the colour of the bottle and the expression “herbal” are the identification marks similar to the plaintiff’s product NIMYLE. Therefore, the claim of superiority of “LIZOL” and the accusation of inferiority of herbal products cannot be allowed to be advertised until the same is scientifically proved.

The Court holds that the impugned advertisement is in the nature of defamation of herbal products and therefore cannot be allowed to be displayed till the persons who claim the statement as truth proves it.

The Court considering the facts in Annamalayar Agencies -vs- VVS and Sons Private Limited and others reported in 2008 (38) PTC 37 (Mad), where advertisement in respect of Coconut oil manufactured by the rival parties under the trade mark “Parachute” and “VVD Gold”, allowed the injunction application seeking order of restrain of comparative advertisements. The Court granted interim injunction restraining the respondent, their management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming under them or acting in concert with them or on their behalf or acting on their instructions from telecasting, broadcasting, publishing, disseminating or otherwise communicating to the public in any manner, the impugned advertisement carrying the storyboard or any part thereof. The Court directed the respondent to withdraw/stop from displaying the impugned advertisement through any mode, in any manner and in any language.