2006 (3) TMI 773 - HC - Companies Law

Summary

Issues Involved:
1. Application for injunction to restrain the Defendant from telecasting a TV commercial.
2. Defendant's application to vacate the ad interim ex parte injunction.
3. Alleged disparagement and denigration of the Plaintiff's product in the Defendant's TV commercial.
4. Legal principles governing comparative advertising and disparagement.
5. Evaluation of the overall audio-visual impact of the advertisement.

Issue-Wise Detailed Analysis:

1. Application for Injunction:
The plaintiff filed an application under Order XXXIX Rules 1 and 2 of the CPC seeking an injunction to restrain the Defendant from telecasting the 'Wipro Sanjivani Honey' TV commercial during the pendency of the suit. An ad interim ex parte order dated 19th January 2006 granted the injunction as prayed.

2. Defendant's Application to Vacate the Ad Interim Ex Parte Injunction:
The Defendant filed an application to vacate the ad interim ex parte injunction. Both applications were disposed of by a common order.

3. Alleged Disparagement and Denigration:
The plaintiff, a manufacturer of Dabur Honey, claimed that the Defendant's TV commercial disparaged and denigrated its product by showing a bottle resembling the Plaintiff's honey bottle and suggesting it remained unused for two years, while Wipro Sanjivani Honey was consumed quickly. The plaintiff argued that this misled consumers into believing that the Plaintiff's product was inferior.

4. Legal Principles Governing Comparative Advertising and Disparagement:
The court referred to several judgments, including:
- Reckitt and Colman of India Ltd. v. M.P. Ramachandran and Anr.: An advertiser can claim their goods are the best or better than competitors, but cannot say competitors' goods are bad, as it would amount to defamation.
- Reckitt and Colman of India Ltd. v. Kiwi T.T.K. Ltd.: Courts will injunct an advertiser if the dominant purpose is to injure the plaintiff's reputation.
- Dabur India Ltd. v. Emami Limited: Insinuation against using a competitor's product can be disparaging.
- Dabur India Ltd. v. Colgate Palmolive India Ltd.: Comparative advertisements should not disparage or defame the competitor's product.
- Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr.: Factors to consider in disparagement include the intent, manner, and message of the commercial.

5. Evaluation of the Overall Audio-Visual Impact:
The court analyzed the intent, manner, and message of the Defendant's commercial. It concluded that the commercial suggested Wipro Sanjivani Honey was superior but did not denigrate or disparage Dabur Honey. The commercial compared the two brands without defaming the Plaintiff's product. The court noted that the fleeting appearance of the Plaintiff's bottle did not amount to disparagement.

Conclusion:
The court dismissed the application for injunction, stating that the commercial did not disparage the Plaintiff's product. The Defendant was allowed to air the commercial with a modification to delete the reference to the two-year period. The injunction was vacated, and both applications were disposed of without costs. The findings were made solely for the purposes of the applications and would not bind the parties in the trial of the case.