The Hindu Business Line : It's easier to change ads than toothpowders

SUNIL Shetty is no longer stopping a bespectacled purchaser, in a TV commercial. Nor is he rubbing what looks like Lal Dant Manjan onto the customer's specs to leave marks akin to `sandpapering', or saying that it is easy to change spectacles but not the teeth. Why so? Because the Delhi High Court has granted an injunction in favour of Dabur India Ltd and restrained Colgate Palmolive India Ltd from telecasting the offending clip. The decision delivered by Mr Justice Mukul Mudgal about a fortnight ago had Mr Arun Jaitley arguing for Dabur and Mr Mukul Rohtagi for Colgate.

From the judgment, one learns that Dabur's turnover for Lal Dant Manjan is about Rs 150 crore, and ad budget for the product, about Rs 4 crore. The company claimed an 80 per cent share of the ayurvedic toothpowder trade. Mr Jaitley submitted that one was free to claim one's goods as "the best in the world", but not that the competitors' goods are bad, because such an action would be slander and defamation. There was an infringement of the provisions of the Trade Marks Act, it was submitted, because Colgate's ad was "contrary to honest practices in industrial or commercial matters" and also against the reputation of Dabur's trade mark.

Mr Rohtagi argued that the ad did not identify Dabur's product; and that studies conducted in the US had found that Lal Dant Manjan tooth powder damaged tooth enamel. While offering to withdraw "the red container/bottle" that identified Dabur's product, he also contended that Dabur's mark was not registered and so it could not claim the benefit of the Trade Marks Act.

Mr Rohtagi cited many English citations to support his stand against Dabur. On this, Mr Justice Mudgal had this to say: "The practice of undue obeisance to English jurisprudence without any thought to the merit and reasoning of such judicial wisdom should also be discouraged."

The judge made interesting references to earlier decisions - such as the Reckitt & Colman case where there were `insinuations' against `all blues' including `Robin Blue'; the Dabur vs Emami case where Chayawanprash came under attack; and the Cola war where `wrong choice baby' and `yeh bachhon wali hai' ad spots were held to be more than mere `puffing up'. With cases "directly on the point of generic disparagement" the judge saw no reason why one should "travel westwards for seeking enlightenment".

"Slandering of a rival product is not permissible," said the judge. Ad campaign on the visual media has an immediate impact on viewers, "particularly when a well-known cine star is endorsing it," he observed. In this case, where Colgate's ad was pointing out "the deleterious effect of Lal Dant Manjan powder," the balance of convenience went in the favour of Dabur, which found that the ad's negative effect was tough to repair "readily and easily".

What about the US study cited by Colgate? Mr Justice Mudgal said: "The averred right of the defendant to inform the purchasing public of the ill effects of the Lal Dant Manjan powder based on its commissioned study cannot tilt the balance of convenience in the favour of the defendant, particularly when the plaintiff also seeks to rely upon studies commissioned by it to back up the merits of its product."

This is no nail-biting finish for a case on teeth and powder. Perhaps, it's easier to change ads than toothpowders.

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