Hindustan Unilever Ltd v. Procter & Gamble Home Products Private Limited

RAJIV SAHAI ENDLAW, J.

FEBRUARY 17, 2017

‗bs'/gsr

P.S.: At this stage it is pointed out that after availing extension of time for payment of court fee in CS(OS) No. 507/2016, no court fees has been paid till now and the court fees paid in CS(OS) No. 463/2016 is below minimum pecuniary jurisdiction of this Court. The plaintiffs in both are granted time till 24th February, 2017 to make up the deficiency in court fees, failing which the suits be listed for appropriate order.

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th February, 2017 + CS(OS) No.459/2016 & IA No.11244/2016 (u/O XXXIX R-1&2 CPC) PROCTER & GAMBLE HOME PRODUCTS PRIVATE LIMITED ..... Plaintiff Through: Mr. Rajiv Nayar, Mr. Sandeep Sethi and Ms. Prathiba M. Singh, Sr. Advs. with Mr. Darpan Wadhwa, Mr. Siddhanth Sharma, Ms. Eesha Mohapatra, Ms. Ruby Singh Ahuja, Ms. Akanksha Munjal, Mr. Arvind Chari and Mr. Devanshu Khanna, Advs. Versus HINDUSTAN UNILEVER LTD. ..... Defendant Through: Mr. Abhinav Vasisht, Sr. Adv. with Mr. Sameer Parekh, Mr. D.P. Mohanty, Ms. Rukhmani Bobde, Ms. Nandita Bajpai, Ms. Swati Bhardwaj and Mr. Abhiram Naik, Advs. AND + CS(OS) No.463/2016 & IA No.11360/2016 (u/O XXXIX R-1&2 CPC) HINDUSTAN UNILEVER LTD. ..... Plaintiff Through: Mr. Jayant Bhushan, Sr. Adv. with Mr. Sameer Parekh, Mr. D.P. Mohanty, Ms. Rukhmani Bobde, Ms. Nandita Bajpai, Ms. Swati Bhardwaj and Mr. Abhiram Naik, Advs. Versus PROCTER & GAMBLE HOME PRODUCTS PRIVATE LIMITED ..... Defendant Through: Mr. Rajiv Nayar, Mr. Sandeep Sethi and Ms. Prathiba M. Singh, Sr. Adv. with Mr. Darpan Wadhwa, Mr. Siddhanth Sharma, Ms. Eesha Mohapatra, Ms. Ruby Singh Ahuja, Ms. Akanksha Munjal, Mr. Arvind Chari and Mr. Devanshu Khanna, Advs. AND + CS(OS) No.507/2016 & IA No.12275/2016 (u/O XXXIX R-1&2 CPC) PROCTER & GAMBLE HOME PRODUCTS PRIVATE LIMITED ..... Plaintiff Through: Mr. Rajiv Nayar, Mr. Sandeep Sethi and Ms. Prathiba M. Singh, Sr. Adv. with Mr. Darpan Wadhwa, Mr. Siddhanth Sharma, Ms. Eesha Mohapatra, Ms. Ruby Singh Ahuja, Ms. Akanksha Munjal, Mr. Arvind Chari and Mr. Devanshu Khanna, Advs. Versus HINDUSTAN UNILEVER LTD. ..... Defendant Through: Mr. Abhinav Vasisht, Sr. Adv. with Mr. Sameer Parekh, Mr. D.P. Mohanty, Ms. Rukhmani Bobde, Ms. Nandita Bajpai, Ms. Swati Bhardwaj and Mr. Abhiram Naik, Advs. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. All the three suits, between the same two parties and filed in quick succession, (may be by way of counter-blast and rejoinder!) claim disparagement of the goods of the plaintiff in the suit, by the defendant in the suit in Television Commercial (TVC) of its goods and seek the relief of injunction and damages. 2. Both the parties to the suit namely Procter & Gamble Home Products Pvt. Ltd. (P&G) and Hindustan Unilever Ltd. (HUL) are manufacturers inter alia of shampoo. These suits are concerned with shampoo sold by each in sachet (as distinct from shampoo sold in bottles or containers) and during the hearing, the counsels were ad idem that sale in sachets constitutes 70% of the total sale of shampoos. 3. These suits concern the ‗Clinic Plus' and ‗Dove' brands of HUL and ‗Head & Shoulders Anti-dandruff Shampoo' (Head & Shoulders) brand of P&G. 4. It is not in dispute that the market price of a sachet of Clinic Plus is Re.1/- and the market price of a sachet of Head & Shoulders is Rs.3/-. 5. The advertisement impugned in each of the suit indisputably compares the two products and though does not name the product of the other but, besides showing the sachet of the advertiser's own product, shows sachet of the other's product. The counsels did not dispute such deceptive similarity, making the viewers aware of the identity of the product with which the advertiser's shampoo is being compared. 6. The counsels also did not dispute that Head & Shoulders is the ―leading anti-dandruff shampoo‖ and that Clinic Plus also has an anti- dandruff shampoo but which is sold in bottles / containers—not in sachets. 7. The TVC in Hindi language of Clinic Plus impugned in CS(OS) No.459/2016 has the female protagonist thereof stating ―Mummy se mili hai ek sansani news. Clinic Plus mazbooti de leading anti-dandruff shampoo se behtar. Teen rupaye wale anti-dandruff shampoo se baal zyada tootte hain. Clinic Plus baalon ko deta hai teen guna zyada mazbooti…bas ek rupaye mein. Mazboot baal bas ek rupaye mein‖. The TVC, in disclaimer at the bottom thereof informs the claim therein to be based on laboratory test. 8. CS(OS