ORDER I.P. Mukerji, J. 1. The Court: This is a war between two multi-national companies. It is a war over broadcast of advertisements, over brands and for pride. The two body corporates involved are the plaintiff and the defendant. The two brands that concern us are "Lifebuoy" and "Dettol". One is an interim application in aid of the suit complaining of disparagement. The storyboard of the advertisement complained of is annexure B to the interim application (GA No. 1687 of 2012). 2. In that application I had passed an ex parte interim order on 25th June, 2012 directing the defendant to delete the top left-hand frame of the advertisement appearing at page 37 of the petition. The defendant was permitted to show the advertisement or that part of the advertisement by deleting the red soap therefrom. The interim order was made limited till today. 3. The background facts are stated in the order of 25th June, 2012. 4. Subsequently, on 29th June, 2012 the defendant took out an application (GA No. 1748 of 2012) for discharge of the interim order. The above interim application of the plaintiff as well as the application by the defendant were taken up by me for consideration at the "New Motion" stage, yesterday and today. 5. Mr. Gautam Chakraborty, learned Senior Advocate supplemented by Mr. Lall, learned Advocate submitted that in June, 2006 the plaintiff instituted a suit (SC(OS) 1292 of 2006) in the Hon'ble Court at Delhi; complaining of alleged disparagement of their product "Lifebuoy" by the defendant by broadcasting an advertisement. An interim application was made in aid of that suit being IA No. 7016 of 2006. 6. In that interim application, a learned 'Judge of that Court passed a detailed judgment and order on 16th November, 2006. The advertisement, amongst other things showed several soaps, one of which was an unbranded rectangular red soap. The other soaps were of different colours. The learned Judge opined inter alia that the presence of the several soaps along with the red coloured soap did not denote that the red soap was identifiable with "Lifebuoy". The read soap shown was unbranded and there were several red soaps in the market, according to the judgment. 7. But Mr. The other soaps were of different colours. The learned Judge opined inter alia that the presence of the several soaps along with the red coloured soap did not denote that the red soap was identifiable with "Lifebuoy". The read soap shown was unbranded and there were several red soaps in the market, according to the judgment. 7. But Mr. S.N. Mookherjee, learned senior counsel for the plaintiff pointed out a passage in that judgment and order which said that if instead of several soaps there was only one soap, the conclusion might not have been the same. 8. Thereafter, I find that there was a second advertisement broadcast by the defendant against which the plaintiff filed an interim application in the same suit at Delhi being IA No. 13870 of 2007. It was filed on 4th December, 2007. The second application is from pages 211 of the application made by the defendant. The storyboard starts from page 218. The material frames are at pages 236 and 239 and where respectively two red coloured soaps and one red and one blue soap are shown. It was inter alia depicted therein that the red soap was unable to eradicate germs. The plaintiff felt aggrieved by this advertisement. 9. It was, further, submitted by the learned counsel for the defendant that on 8th September, 2011, the plaintiff withdrew from that suit. It was submitted by Mr. S.N. Mookherjee that since the defendant stopped airing the advertisement the suit was withdrawn. 10. I have seen the order of 8th September, 2011 of the Delhi High Court. Liberty was given to the plaintiff to file a fresh suit in case there was a fresh cause of action. Hence, in my opinion there was no leave to file a fresh suit for the self-same cause of action. 11. Mr. S.N. Mookherjee, learned senior, counsel for the defendant also submitted that the advertisement which was the subject, matter of the second application contained the following: Super: As, per standard testing protocol against soaps without actives. 12. Mr. Mookherjee suggested that this description excluded, Lifebuoy soap, which contained "actives". Actives are ingredients which fight germ or prevent invasion by germs, as I have understood. As "Lifebuoy" contains "actives" there was no reference to Lifebuoy. I do not think that an ordinary and prudent customer can understand these niceties. 12. Mr. Mookherjee suggested that this description excluded, Lifebuoy soap, which contained "actives". Actives are ingredients which fight germ or prevent invasion by germs, as I have understood. As "Lifebuoy" contains "actives" there was no reference to Lifebuoy. I do not think that an ordinary and prudent customer can understand these niceties. They only sat two rectangular red soaps on the screen, one that killed germs or prevented germs and the other that did not. Therefore, the decision of the plaintiff to withdraw from the Delhi suit, also prima facie amounted to abandoning their claim that the red rectangular soap denoted their product "Lifebuoy" to the ordinary and prudent customer. The interim order 16th November, 2006 also stood discharged, by withdrawal of the suit and is of no consequence, in my opinion. But this action of the plaintiff, in my opinion, precludes them from making the above claim with regard to the red soap. 13. Mr. Chakraborty and Mr. Lall submitted that the plaintiff manufactured soaps of different colours and sizes. Red was one of them. Mr. Mookherjee submitted that 90% of the soaps manufactured by the plaintiff were red. Furthermore, the plaintiff had a 98% market share in red soaps. 14. Mr. Mookherjee also submitted that the advertisement, which is the subject-matter of this suit is quite different from the two advertisements, which were the subject-matter of the Delhi suit. To be more particular, the circle with germs and the circle without germs were absent in the Delhi suit. The 100% warranty about 10 times greater efficacy of Dettol, was also absent in the Delhi suit. 15. Mr. Chakraborty's main submission was that the plaintiff was guilty of suppression of facts. All these proceedings before the Delhi High Court, the two advertisements, which were its subject-matter, the withdrawal of the Delhi suit and the consequences thereof ought to have been pleaded in the plaint and the interim application, but have not been pleaded. Therefore, the interim order was made on gross suppression of material facts for which it should be vacated. On the other hand, Mr. Mookherjee produced an affidavit affirmed before the Delhi High Court on 26th February, 2008, which he submitted was suppressed by the defendant. 16. He cited Gujarat Bottling Co. Therefore, the interim order was made on gross suppression of material facts for which it should be vacated. On the other hand, Mr. Mookherjee produced an affidavit affirmed before the Delhi High Court on 26th February, 2008, which he submitted was suppressed by the defendant. 16. He cited Gujarat Bottling Co. Ltd. v. Coca Cola Co.; reported in (1995) 5 SCC 545 paragraph 47 : (AIR 1995 SC 2372) to submit that if there was suppression in an application for vacating an interim order, the interim order should not be vacated. 17. I am unable to accept his submission. If there were earlier proceedings with regard to alleged disparagement of the plaintiff's product, the plaintiff ought to have brought them on record in this interlocutory application. Furthermore, it was their duty to disclose the interim orders and their discharge. As discussed earlier the Delhi proceedings, the interim order and the effect of its withdrawal have a lot of relevance in considering an interim order in this suit. 18. On the other hand, the defendant did not have any primary obligation to disclose the above affidavit because certain portions of the affidavit are in favour of the plaintiff and it was for the plaintiff, who was a party to the said proceedings to disclose this affidavit. 19. However, I find that there is a faint pleading in the interlocutory application that diverse proceedings were undertaken between the parties to which reference was craved. I think this pleading saves the plaintiff from discharge of the interim order on the ground of suppression alone. 20. Mr. Chakraborty, learned senior counsel has also referred me to the decision of the Advertising Standard Council of India (ASCI) upholding the contents of the subject advertisement. ASCI is responsible for setting the standard of conduct and duty of care in advertising, as held by Nijjar, J. when he was in the Bombay High Court in the case of Century Plyboards (India) Ltd. v. The Advertising Standards; reported in 1999(3) MhLJ 543 : (2000 CLC 1097). This case was cited by Mr. Chakraborty. 21. Mr. Chakraborty also cited Reckitt Benckiser (India) Limited v. Naga Limited & Ors.; reported in 2003(26) PYC 535 (Del) to submit that when ASCI had rejected the case of the plaintiff no interim order should have been passed. 22. I am unable to accept this submission for two reasons. This case was cited by Mr. Chakraborty. 21. Mr. Chakraborty also cited Reckitt Benckiser (India) Limited v. Naga Limited & Ors.; reported in 2003(26) PYC 535 (Del) to submit that when ASCI had rejected the case of the plaintiff no interim order should have been passed. 22. I am unable to accept this submission for two reasons. Any decision of ASCI is subject to orders of the Court if a suit on the subject-matter is pending before it. The Court is not bound to follow any recognition of an advertisement made by ASCI but should make its own evaluation and decision. Moreover, my attention was drawn by Mr. Mookherjee to a decision of a similar body in South Africa made on 4th July, 2012, which was diametrically opposite to the decision taken by its Indian counterpart. 23. Now, I come to the core of the controversy between the parties together with my findings. 24. On frame of the subject, advertisement has a frame showing a red rectangular soap with an inward curve, which is elliptical in shape. This soap, in my opinion, is identical to the registered design of the plaintiff. The design registration as noted in the interim order was obtained by them on 12th June, 2008. 12th June, 2008 is the date of issue of the certificate of registration. The date of registration appears to be 10th January, 2008. Now, in the above affidavit affirmed on 26th February, 2008 used before the Delhi High Court, the defendant specifically recognised the above shape and configuration of the "Lifebuoy" soap in paragraph 4. It is as follows: The shape of the LIFEBUOY soap is not rectangular with sharp edges, as is shown in the Defendant's advertisements, but instead has curved edges and has a curvature in the middle as well. A representation of the rid coloured soap of the plaintiff and the soap displayed in the Defendant's advertisement are as under. 25. Now, depiction of a red soap in this manner in the advertisement in question would, in my judgment, certainly convey to in ordinary and prudent customer that it referred to the soap of the plaintiff. Mr. Chakraborty's contention that this soap had not yet been marketed falls to the ground in View of this averment in paragraph 4 of the affidavit. 26. Mr. Chakraborty's contention that this soap had not yet been marketed falls to the ground in View of this averment in paragraph 4 of the affidavit. 26. Furthermore, by withdrawal of the suit in the Delhi High Court without reserving any liberty to file a fresh suit on the selfsame cause of action, the plaintiff has given up its claim over the red rectangular soap i.e. it is estopped from contending that any red rectangular shaped soap or a red coloured soap or a red soap of any other shape is to be identified with "Lifebuoy". 27. In that view of the matter, the interim order made on 25th June, 2012 is to continue until further orders with the condition that the defendant would be at liberty to alter the existing advertisement in terms of the observations made above. To clarify, if the defendant substitutes the existing red soap with an unbranded rectangular red soap or an unbranded red soap of a shape and configuration not resembling the existing red soap, i.e. the soap with the registered design, then they can also show the rest of the frame. This is because, in that event, the substituted red soap would signify a common soap in the market. The above observations are all prima facie. 28. Let affidavit in opposition be filed by 23rd July, 2012. List this application on 8th August, 2012. Affidavit in reply, if any, may be filed in the mean time. 29. The above directions cover both the applications. All parties concerned are to act on a signed photocopy of this order on the usual undertakings.