2009 (12) TMI 1012 - HC - Companies Law

Summary

Issues Involved:
1. Application for ad-interim injunction u/s Order 39 Rule 1 & 2 of CPC.
2. Allegation of disparagement in advertisement.
3. Defendant's defense and counter-arguments.
4. Legal principles on disparagement and malicious falsehood.
5. Examination of facts and evidence.

Summary:

1. Application for Ad-Interim Injunction u/s Order 39 Rule 1 & 2 of CPC:
The plaintiff sought an ad-interim injunction against the defendants to stop the telecast of an advertisement for "Good Knight Naturals Mosquito Repellant Cream," alleging it disparaged their product "ODOMOS."

2. Allegation of Disparagement in Advertisement:
The plaintiff claimed the impugned advertisement insinuated that their product caused rashes and allergies, thus denigrating it. They argued that disparagement could be both 'overt' and 'covert' and cited various judgments to support their claim.

3. Defendant's Defense and Counter-Arguments:
The defendant contended that:
- The suit lacked a cause of action.
- The advertisement stated facts without intent to disparage.
- There was no direct reference to the plaintiff's product.
- The advertisement highlighted the benefits of their product with natural additives.
They emphasized that advertising is a form of commercial speech protected under Article 19(1)(a) of the Constitution.

4. Legal Principles on Disparagement and Malicious Falsehood:
The court outlined principles from previous judgments:
- Puffery is permissible, but denigrating a rival's goods is not.
- Comparative advertisement is allowed if it does not have negative overtones.
- Generic disparagement is tortious and can be injuncted.
- Truth is a complete defense to defamation or slander of goods.
- Advertising is protected under Article 19(1)(a) but must adhere to reasonable restrictions.

5. Examination of Facts and Evidence:
The court examined the impugned advertisement and found:
- Both plaintiff's and defendant's products contained "N, N-Diethyl benzamide" and "Oil of Citronella."
- The defendant's claim that their product's milk protein base reduced the likelihood of rashes and allergies was not disparagement but puffery.
- The advertisement did not specifically target the plaintiff's product.
- The plaintiff failed to plead and prove malicious intent or special damage.

Conclusion:
The court concluded that the impugned advertisement did not prima facie constitute malicious falsehood and dismissed the application for an ad-interim injunction. The defendant was directed to file a written statement, and the case was listed for further proceedings.