2010 (2) TMI 1256 - HC - Companies Law

Summary

Issues Involved:
1. Whether the commercial telecast by the Respondents disparages the product of the Appellant.
2. Whether the Appellant is entitled to an injunction against the telecast.

Summary:

Issue 1: Disparagement of Product
The primary question before the court was whether the commercial telecast by the Respondents disparages the Appellant's product. The court concluded that the commercial does not fall within the tort of "malicious falsehood" and does not target the Appellant's product. The court observed that the commercial merely highlights the virtues of the Respondents' product without overtly or covertly denigrating the Appellant's product. The court emphasized that commercial speech is protected u/s Article 19(1)(a) of the Constitution, provided it is not false, misleading, unfair, or deceptive. The court referred to precedents such as Tata Press Ltd. v. MTNL and Ors. and Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., which outline that while boasting about one's product is permissible, disparaging a rival product is not. The court also noted that the commercial did not suggest that any particular mosquito repellant cream causes rashes, allergy, or stickiness, and that the Appellant's perception of disparagement was hyper-sensitive.

Issue 2: Entitlement to Injunction
Given the court's conclusion on the first issue, the question of whether the Appellant is entitled to an injunction against the telecast does not arise. The court confirmed the view taken by the learned Single Judge in the impugned order, which rejected the application for injunction. The court reiterated that an advertiser must be given enough room to play around in the grey areas of permissible assertion and that market forces and consumer choice ultimately determine the success of a product. The court dismissed the appeal, finding no merit in the Appellant's claims.

Conclusion:
The appeal was dismissed, and the court upheld the learned Single Judge's order, concluding that the commercial did not disparage the Appellant's product and that no injunction was warranted.