2008 (2) TMI 932 - HC - Companies Law

Summary

Issues Involved:
1. Temporary Injunction
2. Trademark Infringement
3. Copyright Infringement
4. Disparagement and Denigration
5. Comparative Advertising
6. Balance of Convenience and Irreparable Loss

Issue-wise Detailed Analysis:

1. Temporary Injunction:
The appellant filed an appeal under Order 43 Rule 1(r) of the Civil Procedure Code challenging the order dated 25th October 2007, which dismissed their application for a temporary injunction. The appellant sought to restrain the respondents from airing a TV commercial that allegedly disparaged their product, MOOV.

2. Trademark Infringement:
The appellant argued that their product MOOV, a pain reliever ointment, had a registered trademark and copyright, giving them exclusive rights under the Trademarks Act and Copyright Act. They claimed that the respondent's advertisement used a similar trade dress, color scheme, and arrangement, thus infringing their trademark. The court found that the respondent's use of a violet-colored pack similar to MOOV's could mislead consumers and amounted to trademark infringement under Section 29(8)(a) and (c) of the Trade Marks Act, 1999.

3. Copyright Infringement:
The appellant also claimed copyright infringement, stating that the distinctive artwork and color scheme of MOOV were registered under the Copyright Act. They argued that the respondent's advertisement, which depicted a similar box, infringed their copyright. The court agreed, noting that the respondent's use of similar artwork without permission constituted copyright infringement.

4. Disparagement and Denigration:
The appellant contended that the respondent's TV commercial disparaged and denigrated MOOV by suggesting that it was not an effective pain reliever and promoting VOLINI as a "true pain reliever." The court found that the advertisement's subtle message implied that MOOV was inferior, which amounted to disparagement and denigration of the appellant's product.

5. Comparative Advertising:
The respondent argued that their advertisement was a comparative one, highlighting the superior qualities of VOLINI without disparaging MOOV. They cited several judgments to support their claim that comparative advertising is permissible if it does not defame a competitor's product. However, the court held that the comparison must be between existing products and that the respondent's use of a non-existent product in a similar color pack to MOOV was misleading and not in accordance with honest practices.

6. Balance of Convenience and Irreparable Loss:
The appellant argued that the balance of convenience and irreparable loss lay in their favor, as the respondent's advertisement could harm their market share and reputation. The court agreed, noting that the appellant's product had a significant market presence and that the respondent's misleading advertisement could cause irreparable damage. The court directed the respondent to change the color of the pack in their advertisement to avoid confusion and restrained them from using the appellant's artwork.

Conclusion:
The court allowed the appeal, modifying the order of the City Civil Judge to the extent that the respondent must change the color of the pack in their advertisement. The court restrained the respondent from using the appellant's artwork and color scheme, thereby granting the temporary injunction sought by the appellant. The request for a stay of the order was rejected, emphasizing the need to protect the appellant's trademark and prevent misleading advertising.