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Court spikes Colgate plea to air modified commercial

13-December-2004
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Court spikes Colgate plea to air modified commercial

In the legal battle involving the country’s two leading dental majors, the Delhi High Court had dismissed Colgate Palmolive India’s application proposing telecasting of a modified version of its tooth powder commercial, which was objected to by Dabur. The court, earlier in September, had barred Colgate from telecasting the commercial.

While asking the parties to suggest different versions, Justice Mukul Mudgal observed: “Considering the fact that in the proposed advertisement suggested by Colgate, the word ’lal’ qualifying dant manjan has been removed, yet the harmful affect of dant manjan in general amplified in the proposed ad by calling it ’sadharan’ dant manjan which is (khurdara) abrasive on the teeth still falls within the prohibition of generic disparagement proscribed by the court’s September judgement.”

It further said, “the suggestion given by either side for the altercations are not acceptable and ... the divergence of views clearly show that the resolution of the dispute by amicable settlement is not possible.”

In September, Justice Mudgal had said in its judgment that the ad campaign had an immediate impact on the viewers and possible purchasers’ minds, particularly when a well-known movie star was endorsing it. “The balance of convenience is in favour of Dabur, as the effect of the ad aired cannot be repaired readily and easily. Consequently, the non-grant of an interim injunction would cause irreparable injury to Dabur not compensable in damages,” he said. “Slandering of a rival product as bad is not permissible...I am of the view that generic disparagement of a rival product without specifically identifying or pinpointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it,” the court had held earlier.

Dabur, manufacturer of Dabur Lal Dant Manjan powder, had moved the high court against the TV advertisement by Colgate Palmolive, manufacturers of Colgate Tooth Powder. The advertisement showed cinestar Suniel Shetty informing lal dant manjan powder buyers about its harmful effects. He was also shown endorsing Colgate tooth powder as being 16 times less abrasive and non-damaging.

Arun Jaitley, appearing on behalf of Dabur, had contended that the impugned advertisement ran down all Lal Dant Manjan tooth powders as severely detrimental to dental health. “While the advertisement did not directly refer to Dabur Dant Manjan, the visual representation in the advertisment left no doubt about the product being referred to as Lal Dant Manjan manufactured and marketed by Dabur,” he said.

Dabur, which holds 80% of the Ayurvedic tooth powder trade, has a turnover of about Rs 150 crore for Lal Dant Manjan tooth powder, and its advertising budget for the said product is Rs 4 crore. “The use generically/specifically of the Dabur product for comparison with the rival product amounts to violation of the intellectually property rights of the petitioner,” he added.

Colgate counsel Mukul Rohtagi had contended that such criticism in the ad was based on studies conducted in the US, which found such lal dant manjan powder damaging tooth enamel and the finding being affirmed by two reputed dentists.

During the course of argument, Colgate had also offered to drop the red container/bottle in the ad, which according to Dabur, identified with its product. “The balance of convenience is in favour of Colgate as it has the right to disclose to the public the injury being caused by deleterious products,” Mr Rohtagi had argued.

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