R.A. Jahagirdar, J. (Chairman) - (1.) THIS enquiry has been placed before the Full Bench for disposal because of the fact that some of the judgments touching upon the subject of this enquiry are inconsistent with each other and also because of the importance of the subject involved in this enquiry. The facts leading to this enquiry ought to be stated. An organisation called "Society for Civic Rights" made an application to the Commission under Section 36B(a) of the Monopolies and Restrictive Trade Practices Act, 1969, complaining of an unfair trade practice on the part of the respondent which is a limited company. The society, hereinafter, for brevity, will be referred to as "the complainant." The respondent is a leading manufacturer of tooth paste and tooth brushes. According to the complaint, the respondent-company had inserted an advertisement in several newspapers in September, 1984, announcing what it called "Colgate Trigard Family Good Habits Contest". "Trigard" incidentally is the name of the tooth brush manufactured by the respondent. The advertisement announced a contest apparently for the purpose of educating families in the good habit of taking care of their dental health. The contest was undoubtedly for the promotion of sale of the Trigard tooth brush manufactured by the respondent.
(2.) A copy of the hand-bill which also described the contest has been annexed to the complaint. Looking to the same and reading the averments in the complaint, the brief particulars of the contest can be noted. As a condition precedent to participating in the contest, each prospective participant was required to send two upper portions of the cartons in which the Trigard tooth brushes were sold. These two upper portions were to be sent along with each entry form which entry form must bear the dealer's name and address duly rubber-stamped on the form. Obviously, this necessitated the purchase of two Trigard Colgate brushes by a prospective participant in the contest. The entry form contained four questions, each with two alternative answers which were also printed. The contestant was required to tick mark the correct answer. By way of an illustration, the respondent had already ticked the correct alternative in the case of the first question which was as follows : "Brush your teeth : (a) only in the morning ; (b) in the morning and after every meal." In the form, alternative (b) had been ticked. There were similar three questions with alternative answers. Anyone with an ordinary knowledge of dental health would tick mark the correct answer to the three questions. But this was not enough. In addition to answering the questions as mentioned above, each contestant had to write a sentence not exceeding ten words describing as to why the contestant's family used Colgate Trigard tooth brush. The best entry in this regard would win the first prize. There were several other prizes for second, third, fourth winners. There were also fifth prizes. It is not necessary to describe the details of the various prizes which were offered by the respondent. However, it must be added that the respondent offered 825 consolation prizes of Rs. 100 each and 1,200 early bird prizes of Rs. 50 each to be awarded to those 100 entries which were received first every week. The last mentioned prizes were irrespective of whether the answers to the questions were correct or not and irrespective of the merit of the slogan which was to be provided by the contestant. In other words, the last prizes were purely upon a chance of the contestant's entry reaching the respondent's office early in the week.
(3.) THE complainant contended that the contest announced and conducted by the respondent was covered by Clause (b) of paragraph 3 of Section 36A of the Monopolies and Restrictive Trade Practices Act. For the purpose of convenience and in so far as it is relevant for the purpose of understanding the allegation in this regard, the relevant provision may be reproduced as follows : "36A. In this Part, unless the context otherwise requires, 'unfair trade practice' means a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely :-- . . . (3) permits- (a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating the impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole. (b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest ;";