ORDER A.N. Divecha, J. (Chairman)
1. This proceeding amply demonstrates what is the effect of advertising campaigns through the visual, the print and the hoarding media. Two television commercials and some newspaper advertisements and some hoardings with respect to "New Pepsodent", a toothpaste manufactured and marketed by the respondent, have drawn two multinational corporate giants to this Commission to fight out what Sheridan could have styled as the "battle of wits".
2. Applicant/complainant No. 1 is a leading manufacturer, inter alia, of toothpaste. It has been marketing its products of toothpaste by various brand names in India for the last several decades. Its leading brand is stated to be Colgate Dental Cream. The respondent has also started manufacturing toothpaste for the last about 25 years. It markets its products of toothpaste by different brands, namely, Close-up, Pepsodent, Pepsodent-G and New Pepsodent. It appears that its product by the name of New Pepsodent has recently been introduced in the market. The advertisement campaign of its New Pepsodent through the print, the visual and the hoarding media appears to have disturbed the applicants/complainants. According to applicant/complainant No. 1, the advertisement campaign, inter alia, virtually disparages its leading toothpaste by the brand name of Colgate Dental Cream. It has, therefore, jointly with a consumer as applicant/complainant No. 2 approached this Commission by way of a complaint together with an application for interim relief under Section 12A of the Monopolies and Restrictive Trade Practices Act, 1969 ("the Act", in brief). For the sake of convenience, applicant/complainant No, 1 will at times be referred to as Colgate in this judgment.
3. Applicant/complainant No. 1 has brought to our notice the market share figures of its products of toothpaste and those of the respondent's products of toothpaste. These market share figures are published by Operation Research Group, Ahmedabad. A copy of comparative figures for the years 1993, 1994 and 1995 and of the different quarters of the years 1996 and 1997 is at annexure 4 to the complaint. The present market share as reflected in the last available quarter (that is, the second quarter) of 1997 for Colgate Dental Cream is shown to be 49.8 per cent. It claims to be the leading toothpaste manufacturer and its Colgate Dental Cream is projected as the leading toothpaste in the market. It has complained of disparagement of its products of toothpaste, more particularly, of its brand name Colgate Dental Cream, by means of comparative data shown on two television commercials and certain newspaper advertisements and some hoardings. A copy each of the Story Boards of the two television commercials and newspaper advertisements is at annexure 1 (collectively) to the complaint. The grievance voiced by and on behalf of applicant/ complainant No. 1 is to the effect that by comparison its toothpaste products are shown to be inferior to that of New Pepsodent. According to the applicants/complainants, such practice on the part of the respondent would amount to an unfair trade practice within the meaning of Section 36A of the Act. They have also charged the respondent with adoption of and/or indulgence in restrictive trade practices as defined in Section 2(o) thereof. The respondent has obviously disputed applicant/complainant No. 1's grievance in that regard. It has contended in its reply to the interim relief application that the television commercials and the newspaper advertisements and the hoardings do not refer either directly or indirectly to any product of toothpaste manufactured by or on behalf of applicant/complainant No. 1. It is also the case of the respondent in its reply that whatever is shown in the television commercials and in the newspaper advertisements and in the hoardings is based on relevant data obtained from research conducted by it in India and abroad for at least a couple of years. In substance, the respondent has refuted the charge of adoption of and/ or indulgence in any kind of restrictive and/or unfair trade practices on its part as alleged by the applicants/complainants in their complaint.
4. It may be mentioned at this stage that learned counsel, Shri Dave, for the respondent has, at the fag-end of his arguments, raised an objection as to maintainability of the complaint and the interim relief application on the part of the applicants/complainants on the basis of Section 36D of the Act. It has been urged that the complaint at the instance of applicant/ complainant No. 1 will not be maintainable in view of the relevant provisions contained in Section 36B and Section 10 of the Act. The complaint admittedly charges the respondent with adoption of and indulgence in restrictive and/or unfair trade practices within the meaning of the Act. If the complaint at the instance of applicant/complainant No. 1 is found not maintainable, runs the submission of learned counsel, Shri Dave for the respondent, no substantive relief to the applicants/complainants could be granted and, if that be so, runs his further submission, no interim relief can or need be granted in favour of the applicants/complainants. Besides, the television commercials, the newspaper advertisements and the hoardings showing 102 per cent, anti-bacterial superiority of the respondent's toothpaste product by the brand name of New Pepsodent over "the famous or renowned toothpaste" and "the leading toothpaste" cause no prejudice to public interest in the context of Section 36D of the Act. According to learned counsel, Shri Dave for the respondent, the applicants/complainants are likely to fail on conclusion of the present enquiry, if any, and that by itself is a ground for refusing any interim relief to the applicants/complainants at this stage, Though this submission has been urged at the fag-end of his arguments, we have thought it fit to take it up first for our consideration.
5. It may be mentioned at this stage that Section 12A of the Act empowers this Commission to grant an interim relief if it is found that the trade practice complained of is likely to affect prejudicially inter alia the interest of any trader. As rightly submitted by learned counsel, Shri Dave for the respondent, the complaint made by applicant/complainant No. 1 charging the respondent with adoption of and indulgence in restrictive and/or unfair trade practices is not maintainable either under Section 10 or under Section 36B of the Act. It may, however, be noted that, under both the aforesaid statutory provisions, this Commission is empowered to act upon its own knowledge or information for the purpose of inquiring into any restrictive and/or unfair trade practice on the part of the complainee. At this stage, a reference may also be made to Explanation 1 to Section 12A of the Act. It embodies a legal fiction of commencement of an inquiry by the Commission, inter alia, upon its own knowledge or information for the purposes of the said statutory provision. The applicants/complainants have brought to our notice the adoption of and/or indulgence in restrictive and/or unfair trade practices on the part of the respondent. They have simultaneously moved an application under Section 12A of the Act, With entertainment of the application under Section 12A of the Act it can be said that the Commission is acting upon its own knowledge or information which is contained in the complaint and the inquiry can be deemed to have commenced by entertaining the application under Section 12A of the Act.
6. Besides, the complaint is by two complainants. Applicant/complainant No. 2 is a consumer. The complaint of a consumer is certainly entertainable in view of the relevant provisions contained in Section 10 and Section 36B of the Act. Simply because applicant/complainant No, 2 has also chosen to seek the association of applicant/complainant No. 1 for the purpose of her complaint is no ground to hold her complaint not maintainable.
7. The other submission urged before us by learned counsel, Shri Dave for the respondent, by pressing into service Section 36D of the Act will be dealt with later on in this judgment.
8. Learned counsel, Shri Raval, for the applicants/complainants, has submitted that the television commercials aired, the newspaper advertisements and the hoardings issued by and on behalf of the respondent are in the nature of disparagement of the toothpaste products of applicant/ complainant No. 1 in general and its product by the name of Colgate dental cream in particular. He has further submitted that the television commercials and the newspaper advertisements and the hoardings in question contain misleading statements qua the alleged anti-bacterial superiority of the respondent's toothpaste by the brand name of New Pepso-dent over any other toothpaste product of applicant/complainant No. 1, In that view of the matter, runs his submission, such practice on the part of the respondent would certainly amount to unfair trade practice within the meaning of Section 36A of the Act. He has further submitted that such practice would also fall within the purview of Section 2(o) thereof. He has submitted that there is ample material on record to show and to suggest that the alleged claim of anti-bacterial superiority of the respondent's toothpaste by the brand name of New Pepsodent over "the famous or renowned toothpaste" and "the leading toothpaste" of Colgate would go to show that they are not true. In that view of the matter, it is necessary to injunct the respondent against airing the television commercials and issuing the newspaper advertisements and hoardings claiming the alleged anti-bacterial superiority of its product by the brand name of New Pepsodent over the "the famous and renowned toothpaste" and "the leading toothpaste" of Colgate. Learned counsel, Shri Dave for the respondent, has on the other hand submitted that there is no reference to Colgate directly or indirectly in either its television commercials or in any newspaper advertisement or in any hoarding. He has further submitted that neither of the television commercials nor any advertisement nor any hoarding contains any misleading statements which would disparage the product of toothpaste of any brand manufactured by Colgate. Besides, according to learned counsel, Shri Dave for the respondent, the statements based on comparative data figuring in the television commercials and the print media advertisements and the hoardings are based on researches made by the respondent in India and abroad. In that view of the matter, runs the submission of learned counsel, Shri Dave, for the respondent, Colgate need not have any complaint to make to this Commission regarding disparagement of any product of its toothpaste of any brand.
9. As observed earlier, the overall market share of the toothpaste products of Colgate is shown to be 59 per cent, in the second quarter of 1997 in annexure 4 to the complaint. Its brand by the name of Colgate Dental Cream accounts for 49.8 per cent, market share as shown therein. The respondent's market share is nearly 27 per cent, in the corresponding period qua all its toothpaste products. These figures do not show the market share of New Pepsodent presumably because it has been introduced recently in the third quarter of 1997. The market share of the toothpaste products of the respondent in the second quarter of 1997 was nearly half that of Colgate according to the figures shown in annexure 4 to the complaint. The other manufacturer is Balsara with a market share of something like 6.3 per cent. It thus becomes clear that Colgate is shown to be the leading manufacturer of toothpaste in the country. Its product by the brand name of Colgate dental cream captured nearly half the market share in the second quarter of 1997. It cannot be gainsaid that it can be styled as the leading toothpaste.
10. The newspaper advertisements and the hoardings issued by and on behalf of the respondent claim anti-bacterial superiority of its toothpaste by the brand name of New Pepsodent at least by 102 per cent, over "the leading toothpaste". The advertisement uses the expression "the leading". One who has some knowledge of the English grammar would not make any mistake by the use of the Article "the" before the word "leading". The leading toothpaste, according to the market share figures contained in annexure 4 to the complaint, would prima facie be Colgate dental cream. Even if no name of Colgate is mentioned, the indication would be clear that the reference is to Colgate if the term is understood in its grammatical context qua the market share figures shown in annexure 4 to the complaint.
11. It might be true that the market share figures are not known to consumers. That might hardly be relevant at this stage, It cannot be gainsaid that Colgate has been in the manufacturing business, inter alia, of toothpaste in India for last more than 50 years. In India, one can say with no uncertainty that as a toothpaste Colgate has become a household name mainly because of its advertisement campaign. It may not be an exaggeration to say that the word "toothpaste" has become synonymous with Colgate over years in India.
12. This by itself may not be sufficient to identify the product referred to in the television commercials as that of Colgate. Colgate itself has aired certain television commercials as a part of its advertisement campaign. In every television commercial was used a ting along with the brand name of Colgate shown on the television screen. While showing a comparison of two products of toothpaste in the television commercials of the respondent, the ting is distinctly sounded when the use of the other (famous and renowned) toothpaste is mentioned by the other boy. Television viewers might have become so used to the ting displayed in the television commercials of Colgate that they are likely to take the ting to be associated with Colgate when used in any television commercial with respect to a toothpaste. It thus prima facie becomes clear that the product referred to in the television commercials in question is identifiable to be that of Colgate. As indicated hereinabove, its product by the brand name of Colgate dental cream enjoys the highest market share. The comparative product in the television commercials can thus be identifiable as Colgate dental cream. The television commercials in this proceeding are shown in Hindi and the word used is "Mashoor". The English equivalent of the said Hindi term could be "famous" and "renowned". If the market share figures at annexure 4 and the familiarity of Colgate as a toothpaste over years are of any indication, we think that the reference to the other product mentioned in the television commercials is prima facie to the Colgate toothpaste. .
13. The newspaper advertisements and the hoardings used the expression "the leading toothpaste". It needs no repetition that Colgate dental cream is "the leading toothpaste" as pointed out hereinabove. Even though there is no direct reference to any Colgate toothpaste or Colgate dental cream, the suggestion is clear that what is referred to as "the leading toothpaste" is none else but Colgate dental cream.
14. It is difficult to agree with learned counsel, Shri Dave, for the respondent, with respect to his submission to the effect that there is no disparagement of the product of Colgate in either the television commercials or the newspaper advertisements or the hoardings. He has invited our attention to the dictionary meaning of the word "to disparage". Its meaning in simple terms would be "to belittle, to show inferior" and the like shades of meanings. The contention of learned counsel, Shri Dave, for the respondent is to the effect that the respondent claims anti-bacterial superiority of its New Pepsodent by 102 per cent, over "the famous or renowned toothpaste" and "the leading toothpaste". According to him, neither the television commercials nor the newspaper advertisements nor the hoardings belittle or show inferiority of any product of Colgate even if it is assumed without admitting that the reference qua "the famous or renowned toothpaste" and "the leading toothpaste" is to Colgate. This submission might look attractive at the first sight. Its hollowness would, however, be clear on its closer scrutiny.
15. At this stage, it would be quite worthwhile to refer to the binding ruling of the Supreme Court in the case of Lakhanpal National Limited v. MRTP Commission  66 Comp Cas 519 ;  3 SCC 251. In that case, the appellant was charged with adoption of and indulgence in unfair trade practice by claiming in its various advertisements that it was making batteries in collaboration with National Panasonic of Japan. In that context, it has been held by the apex court (page 524 of 66 Comp Cas): "The object is tb bring honesty and truth in the relationship between the manufacturer and the consumer. When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man ? Does it lead a reasonable person in the position of a buyer to a wrong conclusion ? 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 too than a literally correct statement. It is, therefore, necessary to examine whether the representation complained of contains the element of misleading the buyer. Does a reasonable man, on reading the advertisement, form a belief different from what the truth is ? The position will have to be viewed objectively and in an impersonal manner. It is stated in Halsbury's Laws of England (fourth edition, paragraphs 1044 and 1045} that a representation will be deemed to be false, if it is false in substance and in fact ; and the test by which the representation is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable repre-sentee. '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, even 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', (emphasis supplied)." It needs no telling that the aforesaid ruling of the Supreme Court is binding on this Commission. It furnishes guidelines as to what should be the approach while deciding whether or not the complainee is guilty of adoption of and/or indulgence in any kind of unfair trade practice qua its advertisement campaign in question. It is clear from the aforesaid binding ruling of the Supreme Court that it has to be viewed in the context of a reasonable man. In other words, the question has to be examined in the light of what effect such advertisement campaign will have on viewers or readers by and large.
16. It cannot be gainsaid that when one claims anti-bacterial superiority over the other, the inference to be drawn would ordinarily be that the other is inferior. It is said : "Comparisons are odious". When any attempt at comparison is made and an attempt is made to show anti-bacterial superiority of the one over the other, the other is painted or projected as inferior. This would be the common impression a reasonable man or a viewer would gather when he sees or is shown comparisons between any two products. In that view of the matter, we are prima facie of the opinion that, by showing comparison between New Pepsodent and "the famous or renowned toothpaste" and "the leading toothpaste" and by asserting the anti-bacterial superiority of its New Pepsodent to the tune of 102 per cent, over the other product, the respondent has tried to show or to suggest or to paint or to project that the other product is 102 per cent, inferior. It is not necessary that there should be any direct reference about inferiority to constitute disparagement. Any allusion or hint by expression, gesture, gimmicks or words on the basis of any kind of comparison showing even indirectly the inferiority of the other product would be sufficient to constitute disparagement for the purposes of Section 36A(x) of the Act.
17. A reference deserves to be made to a ruling of this Commission in Interim Application No. 308 of 1996 in UTPE No. 255 of 1996, decided on March 20, 1997. It was also a case of a television commercial. Colgate was the complainant. The grievance was that in the television commercial involved therein disparagement of its toothpowder was visibly alluded. This Commission found that the use of the oval-shaped tin of the same colour scheme as of Colgate containing toothpowder shown even without mentioning the name of Colgate was indication of representing Colgate tooth powder for the purpose of comparison. This Commission injuncted the respondents from display of such television commercials showing the oval-shaped tin containing toothpowder with the colour scheme adopted by Colgate for its toothpowder tins. This ruling makes it clear that even indirect reference to someone else's product in a television commercial or a newspaper advertisement or a hoarding can be a ground for the charge of "unfair trade practice" within the meaning of Section 36A(1)(x) of the Act.
18. Learned counsel, Shri Dave, for the respondent seems to be right in his submission to the effect that there would not be any disparagement of any goods or products if the comparison is based on correct factual data. According to him, the claim made by the respondent with respect to the anti-bacterial superiority of its toothpaste product by the brand name of New Pepsodent over "the famous or renowned toothpaste" and "the leading toothpaste" is stated to be based on some factual data on the basis of some research made by and on behalf of the respondent in India and abroad. The respondent has produced in the present proceeding, opinions of certain experts in order to controvert the case of Colgate to the effect that the claim of alleged anti-bacterial superiority of New Pepsodent over "the famous or renowned toothpaste" and "the leading toothpaste" is incorrect. The applicants/complainants have also brought on record certain test reports from certain institutions including one from the Haffkine Institute. They have also tried to show that the ingredients of Pepsodent (presumably old) and New Pepsodent are practically the same with some slight variations. They have also tried to show that various tests conducted by comparing the toothpaste by the brand name of New Pepsodent with Colgate Dental Cream would clearly indicate that the claim of the alleged anti-bacterial superiority of the former over the latter is found to be quite untrue. The respondent has on the other hand contended that the protocols (the nomenclature for the method and the manner of conducting scientific tests) adopted by various institutions, on whose test reports the applicants/complainants rely, are not the correct protocols for the purpose. As aforesaid, the respondent has also relied on certain test reports on the basis of the tests and analyses conducted by its research laboratories and also opinions of certain experts even in the context of test reports on which the applicants/complainants rely. At this stage, it may be noted that the case of the applicants/complainants is that Colgate offered to the respondent that the test of the concerned toothpaste products of both Colgate and the respondent should be carried out by certain experts who should decide their own protocols for the purpose. It appears that the respondent has not agreed to it. Learned counsel, Shri Dave, for the respondent has submitted that the said suggestion was in the nature of a device to know the secret of the formulation of the respondent's tooth-paste by the brand name of New Pepsodent. Learned counsel, Shri Dave, for the respondent has also submitted that the alleged similarity between the ingredients of Pepsodent as it was and New Pepsodent is not correct. He has submitted that the respondent is prepared to show its formulation of New Pepsodent to the Commission, if so desired, on condition that it should be kept a guarded secret and it should not be shown to the other side, His offer was, according to him, with a view to satisfying this Commission that the ingredients of Pepsodent as it was and New Pepsodent are different and in no manner quite similar or identical. In other words, the respondent has tried to claim a privilege with respect to its formulation of New Pepsodent as its trade secret. We wonder whether such claim of privilege can be accepted in the context of the law of evidence as in force in this country. We have however not chosen to examine the formulations of Pepsodent as it was and New Pepsodent unless it was to be shown to the other side so that the other side could have an opportunity to point out the similarity, if any, between the two formulations. Learned counsel, Shri Dave, for the respondent has highlighted the presence of Triclo'san to the extent of 0.2 per cent, in New Pepsodent for providing a strong antibacterial effect in the mouth. He has taken pains to take us through various research papers on the effectiveness of Triclosan as an anti-bacterial agent. Learned counsel, Shri Raval, for the applicants-complainants has not disputed the effectiveness of Triclosan as an anti-bacterial agent. He has however submitted that Triclosan was present as an ingredient to the extent of 0.2 per cent, even in old Pepsodent, In that view of the matter, according to learned counsel, Shri Raval, for the applicants/complainants, in the absence of any material change in the percentage of Triclosan as an ingredient, the respondent need not be permitted to claim 102 per cent, anti-bacterial superiority of New Pepsodent over any Colgate toothpaste. Besides, in order to have more effectiveness as an anti-bacterial agent, runs his submission, Triclosan as an ingredient should be to the extent of 0.3 per cent, in a toothpaste according to research papers produced in the proceeding by and on behalf of the applicants/complainants. We think this is to be a subject matter for a considered opinion by some experts. We should deal with this aspect somewhat later hereinbelow in this order.
19. We think that the question whether or not the statements claimed in the television commercials and the newspaper advertisements and the hoardings in question are correct has to be decided on the basis of some opinion of independent experts. Examination of the truthfulness of such claims involves a highly scientific approach. It might be hazardous on our part to base our conclusion, even our prima facie opinion, on the experts' opinions available on record as both the sides have brought on record their rival versions. In fact, the respondent has also volunteered in its reply that this may be done by a team of experts. This may be done at the stage of final hearing. If the parties agree, it can be done at the interim stage also provided each side furnishes the names of experts with their consent to give opinion, if so desired by the Commission, within the reasonably specified time-limit and to make themselves available, if necessary, for evidence in the context of opinions given by them, if ultimately it is so decided. In that context, both Colgate and the respondent may furnish the name of one expert on each side and the Commission can also nominate one renowned expert on the panel. The experts may be requested to submit their report within a specified time-limit like 4-5 months according to the exigencies of the situation if the parties are agreeable, they can and may supply a list of names of renowned experts with the nomination of each one of them with willingness of such experts to give their opinions within some reasonable time-limit and their consent to make themselves available for giving evidence, if necessary. This may be done within a fortnight from today. If the parties are agreeable, the order passed at present may be treated as a purely temporary interim order subject to modification, variation or vacation after perusing the opinion of the aforesaid panel of experts and after further hearing given to both the sides. It may be understood that the protocols to be adopted for the purpose of carrying out tests in order to give the opinion about the truthfulness or otherwise of the claim of anti-bacterial superiority of its product by the brand name of New Pepsodent of the respondent over "the famous or renowned toothpaste" and "the leading toothpaste" manufactured by Colgate should be left to the team of experts for the purpose. Neither side should claim that its protocols alone should be followed and no other protocol. If the parties are not agreeable to this formula, the order passed by us at present in the present proceeding may be treated as an interim order till the final disposal of the case.
20. In view of our aforesaid discussion, we are prima facie of the opinion that in the television commercials and newspaper advertisements and the hoardings in question the reference to "the famous or renowned toothpaste" or "the leading toothpaste" is to that of Colgate and none else. It transpires from the material on record that the test conducted by and on behalf of the respondent for the purpose of its claim of the alleged anti-bacterial superiority to the extent of 102 per cent, of its New Pepsodent over "the famous or renowned toothpaste" or "the leading toothpaste" was in the context of Colgate Dental Cream and no other toothpaste. This by itself would go to show and to suggest that the comparison between the New Pepsodent and "the famous or renowned toothpaste" or "the leading toothpaste" in the television commercials, the newspaper advertisements and the hoardings were aimed at claiming anti-bacterial superiority of the former over Colgate Dental Cream and none else. We are, therefore, of the opinion that the applicants/complainants have established their prima facie case for the purpose of this interim relief application.
21. Both the sides have cited before us several rulings in support of their rival contentions. We have not thought it fit to burden this order by extensively referring to these rulings. Those worthy of some consideration have been referred to in the earlier part of this order hereinabove. It may be mentioned at this stage that the ruling of the Federal Court of Australia in the case of Colgate Palmolive Pty. Ltd. v. Rexona Pty. Ltd.  37 ALR 391 ;  ATPR 140-242, deserves some reference. In that case also the battle was between these two corporate giants. The counterpart of the respondent in Australia had introduced one toothpaste by the name of "Aim" in Australia with claims of its effectiveness on decay-causing plaque. It launched a heavy advertisement campaign making such claims in different forms. In that context, the Australian Federal Court did grant an injunction against making such tall claims till the truthfulness of the claim was established at trial. While granting such interim relief, the Australian Federal Court also took into consideration the balance of convenience between the parties.
22. The rulings cited on behalf of the respondents are again rulings of English courts on certain slander cases. We do not think that rulings on slander cases deserve consideration at this stage. One more ruling relied on by learned counsel, Shri Dave, for the respondent was with respect to principles for grant of interim reliefs. We think that the principles for grant of interim injunctions are so well-settled that no detailed discussion would be necessary with respect to any such ruling.
23. That would bring us to the question of the balance of convenience. It cannot be gainsaid that the visual media has reached practically every nook and corner of this vast country. The television might have been an item of luxury in the not very remote past. However, it has now become more or less a household requirement. It would be no exaggeration to say that no household is complete without a television set. It is not necessary to amplify the television craze in people. It may be sufficient to observe that talks about television serials and certain other programmes on the visual media frequently occur in day-to-day conversations between friends and closely acquainted persons. So is the case with the print media. It is true that the ratio of literacy in our country is not so high. The ratio of literacy is certainly high in the urban areas. A newspaper has also become a household requirement. A person rising from his night slumber would like first to glance at the newspaper headlines every morning. A hoarding in a public place would certainly prominently attract the attention of passers-by, be they pedestrians, cyclists, scooterists or motorists. In that context, it cannot be overlooked what impact a television commercial or a newspaper advertisement or a hoarding will have on the vast multitude in this country. Besides, we cannot overlook the fact that people by and large accept what is shown on the television or what is printed in newspapers to be more or less true. People are by and large not cynics or sceptics to doubt any and every statement appearing in newspapers or in television commercials. They might be inclined to accept them as true statements if not as the gospel truth. In that view of the matter, the claim of anti-bacterial superiority of one product over the other in any television commercial or in any newspaper advertisement will have a very great mass appeal. So would be the case with hoardings. It cannot be gainsaid that a television commercial or a newspaper advertisement or a hoarding is a part of marketing strategy designed to promote the sale of an article, an item or a product manufactured and marketed by any trader including a manufacturer. If any attempt is made in such television commercials or newspaper advertisements or hoardings either directly or indirectly to show the goods or products of the other as inferior by claiming antibacterial superiority of the advertiser's products, it would deserve serious consideration till the truthfulness of the claim made in such television commercials and newspaper advertisements and hoardings is fully established. If this is not done, it is possible that such comparisons might affect the sales of similar products and more particularly of the product which enjoys the market leadership. As pointed out hereinabove, the market share of Colgate qua Colgate Dental Cream is shown to be nearly 50 per cent, in the second quarter of 1997. Applicant/complainant No, 1 has tried to show that its market share qua Colgate Dental Cream has dwindled to 44.3 per cent, in August, 1997, and 41.9 per cent, in September, 1997. Colgate attributes this to the massive advertisement campaign on the part of the respondent. Even if these figures are accepted as true figures, the corresponding figures of the market share of New Pepsodent are not brought to our notice and it may be hazardous on our part to come to the conclusion even at the prima facie stage that loss of the market share is attributable solely to the massive advertisement campaign on the part of the respondent. The fact however remains that the market share of Colgate Dental Cream has come down by nearly 5 per cent, in August, 1997, and 8 per cent, in September, 1997, qua the figures shown for the second quarter of 1997. Learned counsel, Shri Dave, for the respondent is somewhat right in bringing to our notice the declining trend of the market share of Colgate Dental Cream as reflected in annexure 4 to the complaint. It may be noted that the market share has dwindled by only 4 per cent, over a period of four years as found in annexure 4 to the complaint. The loss of the market share of nearly 5 per cent, and 8 per cent, in the months of August and September, 1997, from the second quarter of 1997 would appear to be phenomenal. It may or may not be attributable to the massive advertisement campaign of New Pepsodent on the part of the respondent. In any case, the interest of applicant/complainant No. 1 as a trader cannot altogether be overlooked in the context of the application under Section 12A of the Act. We think that the balance of convenience would tilt at least slightly in favour of the applicants/complainants in general and applicant/complainant No. 1 in particular.
24. As rightly submitted by learned counsel, Shri Dave, for the respondent, no injunction may be granted if the injury caused to a party can be compensated in monetary terms. If any loss is caused to the applicants/ complainants, more particularly to applicant/complainant No. 1, on account of the advertisement campaign in question, runs the submission of learned counsel Shri Dave for the respondent, the applicants/complainants, more particularly applicant/complainant No. 1, can move this Commission for compensation under Section 12B of the Act. This submission would look attractive at the first sight. However, on a closer scrutiny, it is not free from all sorts of complications and complexities. It is not shown to us how many manufacturing units the respondent has for its toothpaste production. It is also possible that it might get its toothpaste products manufactured by some small scale units on supply of its formulations. It would, therefore, be difficult exactly to find out what would be the extent of injury in clear terms on account of loss of the market share in toothpaste on the part of Colgate. We, therefore, think that the applicants/complainants would suffer irreparable injury if the desired interim relief is not granted. As against this, the respondent is not likely to suffer much on account of grant of interim relief inasmuch as the amount saved on the advertisement campaign at present can always be spent with greater vehemence and vigour if it ultimately succeeds at trial.
25. So far as prejudice to public interest is concerned, we think that members of the public as consumers need not be permitted to be swayed only by the statistical anti-bacterial superiority to the tune of 102 per cent, of New Pepsodent over "the famous/renowned toothpaste" or "the leading toothpaste". If the claim of 102 per cent, anti-bacterial superiority made by and on behalf of the respondent qua its product in question is not found true, consumers by and large can be said to have been duped by such advertisement campaign. This injury caused to the public in general can hardly be compensated in terms of money as the feeling of being duped cannot be evaluated in monetary terms.
26. We, therefore, think it is necessary at this stage to injunct the respondent from directly or indirectly making any reference to Colgate in its television commercials or newspaper advertisements or hoardings for claiming anti-bacterial superiority of its toothpaste products. We think it is also necessary to injunct the respondent from referring to any specific quantum of anti-bacterial superiority in terms of any specific percentage figures of its product over any other product till its claim of such antibacterial superiority is fully established. This would be also for the purpose of protecting consumers' interest.
27. In the result, this application is accepted. An order of interim injunction is issued restraining the respondent from referring to any Colgate toothpaste in any manner, either directly or indirectly, by means of any allusion or hint in its television commercials or newspaper advertisements or hoardings by comparison of its New Pepsodent with any product of Colgate in general and Colgate Dental Cream in particular. This order of injunction has to be implemented by and on behalf of the respondent within a week from today in terms of the order passed by this Commission on October 15, 1997.