ORDER
R.K. Anand, Member
1. An application under Order 39 Rule 4 of the Code of Civil Procedure, 1908 has been made by the respondent, Hindustan Lever Ltd. praying that the ad interim injunction granted by the Commission vide its order dated 5/6th November, 1997 may be vacated. The Commission, by virtue of its above mentioned order, had restrained the respondent, Hindustan Lever Ltd. from referring to any tooth paste, manufactured by the applicant/complainant, Colgate Palmolive (India) Ltd., in any manner, either directly or indirectly by means of any illusion or hint, in its TV commercials or newspaper advertisements and claiming 102% anti bacterial superiority of its own product, New Pepsodent. Further the Commission by its order of the 13th February, 1998 had constituted a three-member expert panel comprising two nominees of the two litigants and one expert nominated by the Commission, as its convenor. While Dr. Richard E. Stallard was nominated by the applicant/complainant, Dr. P.D. Marsh was the nominee of the respondent whereas Dr. Michael Cole was nominated as the convenor of the expert panel by the Commission. The expert panel was to go into the claim of 102% superiority made by the respondent qua its product, New Pepsodent over Colgate Dental Cream. The panel has since submitted its report dated the 15th June, 1999 concluding that the claim made by the respondent, that its tooth paste, with the brand name New Pepsodent, was 102% more effective in fighting germs than the famous and leading tooth paste, was justified. It may be mentioned here that the famous and leading tooth paste was none other than Colgate Dental Cream manufactured and marketed by the applicant/complainant.
2. To appreciate the rival contentions of the parties, it is necessary to recapitulate the facts of the case. Briefly stated, the facts are that the applicant/complainant filed a complaint/ petition and also an application under Section 12A of the MRTP Act, 1969 (the Act for brief) complaining of disparagement of its tooth paste, with the brand name Colgate Dental Cream and alleging that it was shown to be inferior to the New Pepsodent, a tooth paste launched by the respondent, in the TV commercials and newspaper advertisements, issued by the respondent, to promote its sale. The Commission, on considering of the complaint/ petition, and after hearing the learned Advocates representing the parties, prima fade, came to the conclusion that a case of unfair trade practices had been made out against the respondent and the reference in the TV commercials and newspaper advertisements to a famous and renowned tooth paste or the leading tooth paste, was to Colgate Dental Cream and the comparison of the New Pepsodent with the Colgate Dental Cream was aimed at claiming anti bacterial superiority over the product of the applicant/complainant. Accordingly, an order of interim injunction was passed restraining the respondent from “referring to any Colgate tooth paste, in any manner either directly or indirectly, by means of any illusion, or hint, in its TV 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”. It was also mentioned that the order was to be treated as a purely temporary interim order and it was subject to modification, variation or vacation in the light of the opinion of the panel of experts. It was considered necessary to appoint an expert panel as it was felt that the question whether or not the statements made in the TV commercials, and newspaper advertisements, in question, were correct, had to be decided on the basis of opinion of independent experts. It was, therefore, decided that the examination of truthfulness of the claims made in the advertisements should be done by a team of experts to be constituted by the nominees of the parties as well as that of the Commission. Thus each side furnished the name of an expert for constituting the panel and the Commission’s nominee was to act as the convenor and the panel of experts was to give its report within a time limit of 4-5 months.
3. It is in this background that the above mentioned expert panel was constituted. However, it was empowered to determine its own protocol for the purpose for examining the claim of 102% superiority of New Pepsodent over Colgate Dental Cream. After the panel was constituted, there was some doubt about the scope of the enquiry to be made by the expert panel and in this context, the convenor addressed a letter to the Commission seeking guidance in this behalf. After hearing the parties, it was clarified by the Commission in its order of the 18th November, 1998 that 102% superiority claimed by the respondent was not confined only to anti bacterial superiority and so far as the consumer was concerned, this fact was to be tested qua oral health care and, therefore, mere laboratory test or study would not be sufficient for this purpose and it would be proper that the test was carried out in the light of clinical study in the context of long term plaque and gingivitis.
4. The report of the expert panel has since been submitted and while Dr. Cole and Dr. Marsh have come to the conclusion that the respondent, Hindustan Lever Ltd. was justified in making the claim that New Pepsodent was 102% more effective in fighting the germs than the leading tooth paste, Dr. Stallard who was the nominee of the applicant/complainant, has disagreed with the findings. The contention of the applicant/complainant is that the expert panel has not discharged its functions in accordance with the remit given to it and that the respondent has not been able to support the claim of 102% superiority, on the basis of clinical tests, as directed by the Commission.
5. It has been pointed out by the applicant/ complainant that the claims of the respondent were not limited to anti bacterial superiority, which is the effect of the tooth paste on bacteria, in a petri dish. It has been further contended that the respondent’s claim was that the New Pepsodent offered oral health benefits i.e. prevention of tooth ache and tooth decay as is further demonstrated from the pleadings of the respondent before this Commission and the respondent’s affidavit of 23rd October, 1997 and initially, this was also the understanding of the convenor of the expert panel, Dr. Cole, as is clear from his letter of 6th July, 1998 wherein he mentioned “I do not believe that in vitro test can be used to support the claim of superiority of one dentrifice over another when the end point must be a measure of the oral health of the user”. It has been further contended that the respondent’s stand that it made a limited representation of anti bacterial superiority and no claim of superiority was made in terms of oral health, by way of preventing tooth decay, gingivitis and periodontal diseases, and there was no need to show that its product was clinically superior to Colgate Dental Cream has been considered by the Commission and it is after considering these averments and submissions made before the Commission that the order of 18th November, 1998 was passed, and it was observed therein, that laboratory test may not be sufficient and a clinical study, would necessarily, be required, to determine the effectiveness of the New Pepsodent, in terms of oral health care. It has been further contended, on behalf cf the applicant/complainant, that the above order of the Commission was challenged before the Hon’ble High Court of Delhi, on the ground that the respondent had represented, in the impugned advertisements, anti bacterial superiority of its product and had not claimed it to be clinically superior to Colgate Dental Cream, but the Hon’ble High Court of Delhi had rejected the contention of the respondent, and while dismissing the writ petition held in the order dated the 24th March, 1999 that the advertisements were not confined to the Hindustan Lever Ltd.’s claim of 102% anti bacterial superiority and that the advertisements go beyond in projecting that the germs can cause tooth ache and tooth decay and, therefore, the Commission’s order could not be faulted for requiring clinical tests for the purposes of determining the truthfulness of the claim of 102% superiority. It has also been pointed out that thereafter, the respondent in the civil appeal filed before the Hon’ble Supreme Court challenged the Commission’s above order of the 18th November, 1998 but the civil appeal was dismissed as withdrawn on 23rd July, 1999 and as a result, the Commission’s above order has become final.
6. It has been contended on behalf of the applicant/complainant, that the scope of the advertisements, issued by Hindustan Lever Ltd. was not confined to the efficacy of New Pepsodent in fighting germs. It has been contended that what was challenged before the Commission was the misleading advertisements and the claim in respect of the New Pepsodent tooth paste and the claim was, therefore, required to be examined by the expert panel and further that the effectiveness of the New Pepsodent tooth paste had to be tested, qua oral health care, on the basis of clinical study. Moreover, the conclusions of the Commission were upheld by the Hon’ble High Court of Delhi, and, therefore, anti bacterial superiority of the New Pepsodent was to be determined on the basis of clinical study and this was the remit, that was given to the expert panel, when on a query, made by Dr. Cole, in his letter, addressed to the Chairman of the Commission, it was clarified that a clinical study was required to be conducted to test the effectiveness of the claim of the respondent.
7. The respondent’s case on the other hand, is that clinical tests were carried out and the results were furnished to the expert panel and these results show that New Pepsodent tooth paste has significant effect on plaque which is the cause of oral problems such as tooth decay and gingivitis. It has been further pointed out that the relevant data was provided to the expert panel and Dr. Cole found that no further tests were necessary and that the claim of the respondent was justified and further that more tests were not required to be carried out by the expert panel, under its own supervision.
8. We have heard the learned Senior Advocates representing the parties and perused the Court record. The point for determination before us is whether the expert panel has acted in accordance with the remit given to it. It is abundantly clear that the expert panel was required to determine the validity of the anti bacterial superiority of the New Pepsodent qua oral health of the consumers. In fact, this was precisely the remit of the panel of experts. It thus follows that the expert panel was not set up to determine only anti bacterial superiority of New Pepsodent but also its effectiveness in fighting tooth ache and tooth decay as well as gingivitis and periodontaf diseases. It also cannot be disputed that a clinical study was necessary for determining the validity of the claim of 102% superiority in the context of oral health including plaque and gingivitis. It is also not in dispute that the stand of the respondent in the pleadings has been that its claim of superiority was based on the laboratory tests carried out in petri dish and not any clinical study. The expert panel, on a clarification sought by its convenor, was told in no uncertain terms that although it could have its own protocol, clinical test was required to be carried out for determining the claim of the respondent in respect of its New Pepsodent tooth paste qua oral health care. Even, the Hon’ble High Court of Delhi also held that the respondent’s advertisements were not confined to its claim of 102% anti bacterial superiority and the Commission’s order regarding clinical test could not be faulted. The appeal filed against the same Commission’s order before the Hon’ble Supreme Court was also dismissed as withdrawn and as a result, the Commission’s order to this effect became final. Thus, it is manifestly clear that clinical studies were required to be carried out to ascertain the correctness of the claim made by the respondent.
9. It has been contended by the applicant/ complainant that the test reports submitted by the respondent as supplemental data to the expert panel do not indicate that a long term plaque and gingivitis clinical study was carried out or that the claim of 102% superiority was justified. We have considered the supplemental data furnished by the respondent and no long term clinical tests appear to have been performed by the respondent for comparing the two products namely New Pepsodent with Colgate Dental Cream and demonstrating its 102% superiority over Colgate Dental Cream.
10. The next point for determination is whether such a study was carried out and also whether without carrying out this study the expert panel could come to the conclusion that tbe claim of the respondent was justified. It is on record that Dr. Cole, the convenor of the panel had himself stated that in vitro test was not sufficient when the question of oral health of the consumer was involved. In other words, even the convenor of the expert panel was of the view that a clinical test was required for examining the claim made by the respondent, in respect of New Pepsodent. It has been urged before us that the conclusion arrived at by the expert panel was on the basis of the data furnished by the respondent and not on the basis of an independent study. It may be mentioned here that the idea of setting up an expert panel was to go into the claim of superiority, made by the respondent, and come to a conclusion, on the basis of a scientific approach, and a proper clinical study. It may be pointed out here that the complaint/petition and the interim relief application filed by the applicant/complainant and the reply thereto, of the respondent supported their rival claims, and contentions, with data, which was supplied by their own respective experts. The task of the expert panel appointed by the Commission was to verify the claim, made by the respondent in its TV commercials, and advertisements, independently, on the basis of a protocol determined by the panel for this purpose and the tests and studies required to be carried out and not only on the basis of the data furnished by the respondent more particularly when the claim made by the respondent based on that data is being disputed. This, in our view, has not been done and, therefore, we are unable to accept the report of the expert panel or its conclusion that the claim of 102% superiority made by the respondent is justified. In that view of the matter, we consider it appropriate to ask the expert panel to conduct an independent clinical study in accordance with the Commission’s remit and give its findings about the truthfulness of the claim made by the respondent. As this case has been pending for nearly five years and it is necessary to avoid further delay, we think that the same panel should be entrusted with this, work.
11. We, therefore, direct the expert panel to re-examine the claim of 102% superiority and conduct the necessary clinical study and submit its findings within the minimum period needed for determining the truthfulness of the claim.