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TMI Blog2004 (9) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the plaintiff's product. The advertisement campaign on the visual media has an immediate impact on the viewers and possible purchaser's mind particularly when a well known cinestar is endorsing it. The plaintiff has thus made out a prima facie case of comparative strength particularly when the defendant does not deny that its campaign points out the deleterious effect of Lal Dant Manjan powder. The balance of convenience is also in the favor of the plaintiff as the effect of the advertisement aired cannot be repaired readily and easily. The averred right of the defendant to inform the purchasing public of the ill effects of the Lal Dant Manjan powder based on its commissioned study cannot tilt the balance of convenience in the favor of the defendant particularly when the plaintiff also seeks to rely upon studies commissioned by it to back up the merits of its product. Consequently, the non grant of an interim injunction would cause irreparable injury to the plaintiff not compensable in damages. The court granted an injunction, restraining the defendants from telecasting the TV commercial Colgate Tooth Powder as depicted in Annexure 'A' to the plaint. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in respect of disparaging advertisements of rival products is well settled by two judgments of the learned Single Judges of this Court reported in 1996 PTC (16) 393 Reckitt Coleman v. Kiwi T.T.K. Ltd. and in IA No. 2124/2004 in CS(OS) 453 of 2004 dated 28th May, 2004 in Dabur India v. Emami. The said position of law is as under:- I. A tradesman is entitled to declare his goods to be best in the words even though the declaration is untrue. II. He can also say that my goods are better than his competitors, even though such statement is untrue. III. For the purpose of saying that his goods are the best in the world of his goods are better than his competitors he can even compare the advantages of his goods over the goods of the others. IV. He, however, cannot while saying his goods are better than his competitors, say that his competitors, goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible. V. If there is no defamation, to the goods or to the manufacturer of such goods no action lies, but if there is such defamation, an action lies and if an action lies for recovery of dam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Section 36(A)(i)(x) of the MRTP Act which deals with unfair practice is the appropriate enactment to deal with the complaint of the plaintiff (e) The mark of the plaintiff is not registered and therefore it cannot claim benefit of Section 29(8) which only provides the protection to a registered trade mark (f) In any case the defendant is prepared to drop the red container/bottle which according to the plaintiff identifies its product. (g) Since the defendant was ready to back up their claim made in the advertisement by the virtue of studies got done by it, the only remedy left to the plaintiff was to claim damages as there is neither prima facie case nor balance of convenience in its favor nor irreparable injury likely to be caused to the plaintiff. (h) He has further relied upon the judgment of Supreme Court in Cadila case reported as 2001 (5) SCC 74 @ para 17 and 87 to contend that the burden of proof is higher in trade mark cases and there has to be very strong case in comparative strength evaluation justifying an injunction. (i) In so far as the balance of convenience is concerned, it is in favor of the defendant as it has the right to disclose to the public the injury bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods the false statement must disparage the goods of the plaintiff. It is important to distinguish in this class of case between a statement which merely disparages goods and a statement which disparages a trader as well as his goods and therefore really constitutes a libel. If the disparagement is directed to the plaintiff's good only, no action for libel will lie. In Griffiths v. Benn, Cozens Hardy MR said: To disparage a trader's goods which is often (though inaccurately) spoken of as a trade libel, does not give grounds for an action of libel, although, if special damage is proved, the plaintiff may recover in an action on the case. On the other hand, the words used, though directly disparaging goods, may also impute such carelessness, misconduct, or want of skill, in the conduct of his business by the trader as to justify an action of libel. In considering any statement alleged to amount to a slander of goods it is necessary to distinguish what may constitute a false statement about another's goods and that which may merely amount to what is generally referred to as a 'trader's puff, that is mere exaggeration about the qualities of one's own goods. (n) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to bolster the cases in their favor. For the purposes of this application, I am disregarding the studies/reports of experts sought to be relied upon by either counsel. 7. In my view, as far as the first plea of Shri Rohtagi appearing for the defendant is concerned about there being no assertion in the plaint that the claims in the advertisement are false, the averments in paras 5, 10 and 12 and particular paras 15 16 of the plaint are sufficient to demonstrate that the plaintiff has termed the advertisement campaign of the defendant as dubious and deceptive and indeed without any logical or rational basis besides being factually incorrect. It is true that the study relied upon by the defendant has not been adversely commented upon in the plaint but there was no occasion to do so as the advertisement complained of does not refer to the study relied upon. Thus the plea of Shri Rohtagi that the plaintiff has not disputed the contents of the advertisement cannot be sustained. 8. Mr. Jaitely has dealt jointly with the second contention of the defendant relating to truth being a defense in an action for disparagement/slander and the third plea that general criticism of product cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ANR. (supra). ..... 9. In my considered opinion, when the Defendant is propagating in the advertisement that there should be no consumption of Chayawanprash during the summer months, it is also propagating that the Plaintiff's Chayawanprash should not also be taken during the summer months as it is not good for health and instead Amritprash, which is the Defendant's product, should be taken. Such an advertisement is clearly disparaging to the product of the Plaintiff as there is an element of insinuation present in the said advertisement. Reliance has also been placed on judgment in Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr., 2003 (27) PTC 305 (Del)(DB) . The following passages are relevant: 16. After analysing the submissions made by the counsel for the parties, the picture which emerges can be summed up thus; it is now a settled law that mere puffing of goods is not actionable. Tradesman can say his goods are best or better. But by comparison the tradesman cannot slander nor defame the goods of the competitor nor can call it bad or inferior. It has been so held in the following cases: (i) Hindustan Lever v. Colgate Palmolive (I) Ltd., . (ii) Reckitt Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed as passing-off . The form that unfair trading takes will alter with the ways in which trade is carried on and business reputation and goodwill acquired. Emerson's maker of the better mousetrap if secluded in his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares. 9. Without at this stage going into the controversy whether Lal Dant Manjan referred to in the advertisement is that of the plaintiff, the plaintiff is certainly entitled to complain as it is one of the largest producers of such tooth powder. Furthermore, the plea of Mr. Rohtagi that in order to praise its product it can describe as inferior and damaging the generic Lal Dant Manjan is not acceptable as it runs counter to the principles of law laid down in two judgments of learned Single Judges of this Court in Reckitt Coleman (supra) and Dabur India (supra). 10. Prima facie, I am of the view that the offending advertisement is clearly covered by the fourth principle set out in the two judgments of Single Judges of this Court noted above. Slandering of a rival product as bad is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than analyzing the effect of material relied upon as extracted in the above paragraph, my task is much simpler as the judgment of Dabur India in my view clearly covers the issue of generic disparagement of a rival trade product and applies to the present case. 16. Mr. Rohtagi had also referred to the defendant's additional affidavit an earlier and similar advertisement campaign by it which led to correspondence between the parties in 1998 when upon the defendant asserting that there was no disparagement of the Dabur Lal Dant Manjan powder, the plaintiff abandoned its stance. It was submitted that since similar issues inter alia involving reliance on the study now relied by the plaintiff in the rejoinder were raised in 1998, the plaintiff cannot now raise such issues again by relying upon such studies. 17. I am of the view that the 1998 advertisement campaign and the correspondence then exchanged does not have any material bearing on the present issue, because the complaint in the plaint is about a recent campaign run on the visual media and there cannot be estoppel or laches derivable from correspondence of the previous campaign of 1998. 18. I am also not dealing with the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h jurisprudence without any thought to the merit and reasoning of such judicial wisdom should also be discouraged. When there is a judgment of Hon'ble Justice Dr. M.K. Sharma directly on the point of generic disparagement, I see no reason why one should travel westwards for seeking enlightenment. Similarly on the question of rival product disparagement the Division Bench of this Court in Pepsi Co. (supra) has also held that defamation of the product of a rival manufacturer cannot be done. Undeniably it is not the puffing up of the defendant's product i.e. the Colgate Tooth powder which can be found objectionable but the running down of a rival product which is the situation in the present case. 21. The advertisement campaign on the visual media has an immediate impact on the viewers and possible purchaser's mind particularly when a well known cinestar is endorsing it. The plaintiff has thus made out a prima facie case of comparative strength particularly when the defendant does not deny that its campaign points out the deleterious effect of Lal Dant Manjan powder. The balance of convenience is also in the favor of the plaintiff as the effect of the advertisement aired c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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