2004 (5) TMI 599 - HC - Companies Law

Application for temporary injunction - disparagement or defamation or insinuation to the goods - advertisement of a product - leading manufacturer of pharmaceutical products - HELD THAT - In my considered opinion, even if there be no direct reference to the product of the plaintiff and only a reference is made to the entire class of Chayawanprash in its generic sense, even in those circumstances disparagement is possible. There is insinuation against user of Chayawanprash during the summer months, in the advertisement in question, for Dabur Chayawanprash is also a Chayawanprash as against which disparagement is made. To the same effect is the judgment of the Calcutta High Court in RECKITT COLMAN OF INDIA LIMITED VS. M.P.RAMCHANDRAN ANOTHER 1998 (8) TMI 627 - CALCUTTA HIGH COURT . When the defendant is propagating in the advertisement that there should be no consumption of Chayawanprash during the summer months , it is also propagating that the plaintiff's Chayawanprash should not also be taken during the summer months as it is not good for health and instead Amritprash, which is the defendant's product, should be taken. Such an advertisement is clearly disparaging to the product of the plaintiff as there is an element of insinuation present in the said advertisement. The defendant could not have taken up a plea that Chayawanprash , which is a competitor to Amritprash, is bad during the summer months and since the defendant has resorted to the same, the same is disparaging and , Therefore, the case in hand calls for an action in terms of the prayer made in the injunction application. In the light of the aforesaid discussion, I allow the application filed by the plaintiff and issue a temporary injunction restraining the defendant, its agents, distributors, stockists and all others acting on its behalf from telecasting the impugned Himani Sona Chandi Amritprash T.V. Commercial, during the pendency of the present suit. The application stands disposed of in terms of the aforesaid order.

Summary

Issues involved: Application for temporary injunction u/s Order XXXIX Rules 1 & 2 of the Code of Civil Procedure regarding disparaging advertisement of a product.

Summary:
1. The plaintiff, a leading manufacturer of pharmaceutical products, markets Dabur Chayawanprash, claiming a 63% market share. The defendant introduced Himani Sona-Chandi Amritprash, airing a TV commercial disparaging Dabur Chayawanprash.

2. Plaintiff alleged the defendant's advertisement insinuated that Chayawanprash should not be consumed in summers, promoting Amritprash as a substitute, negatively impacting plaintiff's business. Defendant argued it was a general statement and 'Chayawanprash' is a generic term.

3. Legal principles from previous cases were cited, emphasizing a manufacturer's right to declare goods as best but not to defame competitors' products. The court analyzed the advertisement's impact on plaintiff's market share and the insinuation against Chayawanprash.

4. The court found the defendant's advertisement disparaging towards Chayawanprash, including Dabur Chayawanprash, affecting the plaintiff's market presence. The defendant's attempt to exclude Chayawanprash during summers for promoting Amritprash was deemed disparaging.

5. The defendant's argument that 'Chayawanprash' is a generic term and the advertisement did not directly reference plaintiff's product was rejected. The court held that the advertisement's message indirectly disparaged the plaintiff's product.

6. The court granted a temporary injunction, restraining the defendant from telecasting the impugned TV commercial during the lawsuit, acknowledging the disparaging nature of the advertisement towards the plaintiff's product. The application for injunction was allowed.