2010 (8) TMI 1099 - HC - Indian Laws

Summary

Issues Involved:
1. Injunction against continued telecast of impugned advertisement.
2. Allegation of disparagement of plaintiff's product.
3. Defendant's defense against disparagement claim.
4. Parameters governing action for disparagement.
5. Comparative advertising and its legal boundaries.

Summary:

1. Injunction Against Continued Telecast of Impugned Advertisement:
The plaintiff filed an interlocutory application u/s Order 39 Rule 1 and 2 r/w Section 151 of CPC seeking an injunction against the defendant to stop the telecast of an advertisement that allegedly disparages the plaintiff's shampoo sold in sachets priced at Re. 1 each.

2. Allegation of Disparagement of Plaintiff's Product:
The plaintiff alleged that the impugned advertisement, released by the defendant on 06.05.2010, maliciously conveyed that shampoos sold in Re. 1 sachets, including the plaintiff's product, were less efficacious compared to the defendant's shampoo. The plaintiff argued that the advertisement indirectly referred to its product by using a 'pearly blue colour' shampoo, similar to its 'Clinic Plus' brand.

3. Defendant's Defense Against Disparagement Claim:
The defendant refuted the disparagement charge, asserting that the plaintiff was not the only manufacturer of blue shampoos sold in Re. 1 sachets. The defendant also claimed that its product contained a larger quantity of shampoo, which was a factual assertion and not disparagement. The defendant argued that the advertisement constituted puffery, which is permissible under the law.

4. Parameters Governing Action for Disparagement:
The court discussed the tort of malicious falsehood, emphasizing that for disparagement to be actionable, the statement must be untrue, made maliciously, and cause special damage to the plaintiff. The court referenced the Division Bench judgment in Dabur India Ltd. Vs Colortek Meghalaya Pvt. Ltd., which outlined factors such as the intent, manner, and overall effect of the advertisement in determining disparagement.

5. Comparative Advertising and Its Legal Boundaries:
The court noted that comparative advertising is permissible as long as it does not denigrate a competitor's goods. The test is whether a reasonable or prudent man would take the statement seriously as attributing a defect to the rival's product. The court found that the impugned advertisement did not specifically or generally attribute any defect to the plaintiff's product and did not constitute disparagement.

Conclusion:
The court concluded that the plaintiff's claim of disparagement was not substantiated at this interlocutory stage. The court directed the defendant to indicate the exact quantity of shampoo in its sachets during the course of the trial, even though there was no statutory obligation to do so. The application for injunction was disposed of with these directions.