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TMI Blog2008 (9) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... gned Television advertisements, filed as plaint document No. 3 in a Compact Disk (CD) or telecasting any other advertisement which is disparaging or slandering the Colgate tooth pastes and for damages to the tune of ₹ 10,01,000/-. Pending suit, the plaintiff has come up with - (i) O.A. No. 493 of 2008 for an interim order of injunction restraining the respondent from making any false, misleading or disparaging representations or from making any slanderous statements/ representations in respect of the plaintiff's products and (ii) O.A. No. 494 of 2008 for an interim order of injunction restraining the respondent from showing, screening, exhibiting or telecasting the offending TV Commercials/advertisements which seek to disparage/denigrate the applicant's products. 3. Simultaneously, M/S. Swabhanu Universal Agencies, the stockist of Colgate Palmolive (India) Ltd., has come up with a similar suit C.S. No. 452 of 2008 for identical reliefs. Pending their suit, they have come up with - O.A. No. 495 of 2008 for an interim order of injunction restraining the respondent from in any manner continuing with the telecast of the impugned Television advertisements, filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mil as well as in Hindi in various Satellite Channels. In the advertisement, a Hindi Film actress advises her daughter that Anchor tooth paste is the only tooth paste containing Triclosan, Calcium and Fluoride and that it is the first tooth paste providing all round protection. Ultimately, the actress questions the viewer as to when the viewer would change over to Anchor tooth paste. The plaintiff has filed the Story Board of the Tamil version of the impugned advertisement and its Hindi version as plaint document Nos.5, 6 and 7 along with the suit. 7. The objection of the plaintiffs is not to the advertisement as a whole. The objection is confined only to 4 issues. They are as follows: (i) The first objection of the plaintiff is to the claim made in the advertisement that Anchor is the ONLY tooth paste containing all the 3 ingredients viz., Calcium, Fluoride and Triclosan. (ii) The second objection of the plaintiff is to the statement in the advertisement that Anchor is the FIRST all round protection tooth paste. (iii) The third objection of the plaintiff is to the statement that the Fluoride in Anchor tooth paste gives 30% more cavity protection. (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decay protection as it is an imitation of the respondent's slogan all round protection . The respondent has given a summary of the litigations pending before various Courts between the very same plaintiff and the defendant, which in brief, are as follows: Case No. Court in which pending Parties to the litigation Prayer C.S. No. 4118 High Court, Bombay Plaintiff and the Defendant An exclusive right of Colgate of 1996 to the Red and White colour combination on the Carton of their tooth paste is the subject matter of this suit. Interim injunction was refused and the suit is awaiting disposal. C.S. No. 1648 High Court, Delhi Plaintiff herein v. Vipul The Hanger Tray used for of 2002 P. Chedda hanging tooth brushes and the Read and White colour combination in the Carton are the subject matters of this suit. No injunction granted and the suit is pending. C.S. No. 691 High Court, Delhi Plaintiff and the Defendant This case relates to the colour of 2002 combination in the container of the tooth powder. Interim order granted in favour of the plaintiff and the appeal against the same is pending. C.S. No. 1804 High Court, Delhi Plaintiff and the Defendant This case relates to total t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff's tooth paste. It is also stated in the counter affidavit that the advertisement did not make a reference to any other tooth paste. According to the respondent, there is nothing in the Television Commercial which disparaged or denigrated the plaintiff's product and that therefore no injunction could be granted. 12. After the respondent filed the counter affidavit, the applicant filed a reply raising an additional issue that an advertisement was posted in the webportal youtube , in which the respondent showed the tooth paste of other companies, with the artist rejecting all other tooth pastes towards the end of the advertisement. This reply affidavit was filed by the applicant in order to disprove the statement made by the respondent in their counter affidavit to the effect that the tooth paste of other companies are not referred to in their TV Commercial at all. 13. In response to the reply affidavit filed by the applicant, the respondent filed a statement titled as Response to the Reply Affidavit . Though such a procedure of filing a Response, is unknown to law, it is contended by the respondent that they were forced to do so since an allegation relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chor tooth paste provides 30% more cavity protection and the claim that Triclosan fights germs 10 times more. (b) It is not the case of the respondent, atleast before this court, that their Anchor tooth paste is the only tooth paste containing all 3 ingredients. It is also not their case that their tooth paste is the first to arrive in the market historically. This is why the respondent seeks to explain the rationale rather than justify the use of the words ONLY and FIRST in their advertisement. In other words, the respondent does not seek to establish that there are no other tooth pastes which contain all 3 ingredients. The respondent does not also seek to establish that their product was the first to arrive in the market. On the other hand, the word ONLY is sought to be explained with reference to a range of their own products and the word FIRST is sought to be explained not with reference to the product but with reference to the slogan all round protection. 17. In view of such a stand taken by the respondent, it is clear that their product is neither the only product to contain all the 3 ingredients nor the first in the market. Therefore if the advertisement in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erism gaining momentum. Interestingly, our Consumer Protection Act was enacted in 1986 while the one in U.K., was enacted only subsequently in 1987. Therefore some of the English decisions on the point, rendered 30 years ago in England, may not be of relevance today even in their soil. Nevertheless I shall consider the decisions relied upon by the learned Senior Counsel appearing on either side. 20. Mr. Arvind P. Datar, learned Senior Counsel relied upon the decision of the District Court, Illinois in Ulick, et al v. PC World Communications, Inc. 1986 WL 84368, in which the District Court granted an injunction prohibiting the defendant from making a false claim that their magazine was the FIRST sophisticated magazine to be entirely written, edited and produced on personal computer based systems. The Court upheld the objection to the use of the word FIRST on a finding of fact that the plaintiff's magazine preceded the defendant's magazine. 21. The learned Senior Counsel also relied upon a decision of the District Court, North Carolina Charlotte Division in Southern Shows Inc. v. Exposition Enterprises 1985 US D. L 22039, in which the Court granted an injunction res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnicious and dangerous for young infants. On appeal, the Court of Appeal ordered a new trial. However, the House of Lords reversed the decision of the Court of Appeal and restored that of the trial Judge. While doing so, Lord Herschell, the Lord Chancellor quoted with approval, Lord Denman, in Evans V. Harlow, which reads as follows: The gist of the complaint is the defendant's telling the world that the lubricators sold by the plaintiff were not good for their purpose, but wasted the tallow. A tradesman offering goods for sale exposes himself to observations of this kind, and it is not by averring them to be 'false, scandalous, malicious and defamatory' that the plaintiff can found a charge of libel upon them. To decide so would open a very wide door to litigation, and might expose every man who said his goods were better than another's to the risk of an action. While concurring with the Lord Chancellor, Lord Watson summarised the essential requirements for maintaining an action for disparagement, on the following lines: Every extravagant phrase used by a tradesman in commendation of his own goods may be an implied disparagement of the goods of all others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The defendants were manufacturers of an abrasive made from synthetic diamond. The defendants issued a pamphlet purportedly containing laboratory reports for providing a comparison of the performance and qualities of both the products. On the ground that the pamphlet contained adverse comments about their product, the plaintiff sued for damages. The defendants sought an order to strike out the statement of claim on the ground that the plaint disclosed no cause of action. It was the contention of the defendant that the pamphlet merely sought to project the superiority of the defendant's product in a glorified manner and that therefore it was not an actionable wrong. While dismissing the motion for striking out the statement of claim, the Chancery Division went into the question of what amounted to disparagement. The relevant portion of the decision is as follows: What precisely is the law on this point? It is a blinding glimpse of the obvious to say that there must be a dividing line between statements that are actionable and those which are not; and the sole question of a dry point of law such as we are discussing here is; where does the line lie? On the one hand, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the plaintiff's products were sold in bottles packed in a wrapper, the defendant covered them with his own wrapper and started selling them. The wrapper used by the defendant, over and above the wrapper of the plaintiff, carried the offending message that someone else's product is better than that of the plaintiff. Yet the decision of the trial Judge to dismiss the action, was upheld by the House of Lords. But in De Beers Products case, the defendant circulated a pamphlet containing technical data relating to the comparative performance of synthetic diamond abrasives and natural diamond abrasives. The data was allegedly collected and compiled by a so called Application Laboratory . Therefore, while dismissing the motion for striking out the plaintiff's statement of claim (on the ground that it disclosed no reasonable cause of action) the Chancery Division held (as seen from the last portion of the above extract) that the statements made by the defendant must be proved to be false, to maintain an action. 27. In Church Dwight v. Siftco Canada 1994 CPR L 2069, a Canadian Court was concerned with an action brought forth by a Company manufacturing and marketing Bakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w on the issue in India, it appears that the earliest decision was that of the Calcutta High Court in Chloride Industries Ltd v. The Standard Batteries Ltd decided on 30-9-1994. It was an action brought forth by the manufacturers of Exide Battery against their competitor on the ground that the competitor indulged in disparagement. A single Judge of the Calcutta High Court held therein that if the goods are disparaged maliciously or with some other such intent to injure and not by way of fair trade rivalry, the same would be actionable. Though this is an unreported decision, it was cited and followed in the subsequent decision of the same High court in Reckitt Colman of India Ltd v. M.P. Ramachandran and Ors. 1999 PTC (19) 741. 29. The decision of the Calcutta High Court in Reckitt Colman of India Ltd v. M.P. Ramachandran and Ors. 1999 PTC (19) 741 appears to have set the trend in the direction that the law has taken in India, over the last decade. Almost all subsequent decisions on the point of law refer to the said decision. Five principles were enunciated in the said decision which are as follows: I) A tradesman is entitled to declare his goods to be best in the words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turers of similar goods to institute proceedings as there is no disparagement or defamation to the goods of the manufacturer so doing. However, a manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods. It, therefore, appears that if an action lies for defamation an injunction may be granted. 31. The next decision is also that of the Delhi High Court in Pepsi Co., Inc. And Ors. v. Hindustan Coca Cola Ltd In that case, an advertisement in which a boy was shown preferring THUMS UP to PEPSI on the ground that the former was a stronger drink while the latter was meant for children, was in issue. While holding that the same amounted to disparagement, the Division Bench of the Delhi High Court held in paragraph-12 and 22 as follows: 12. What is disparagement. The New International Websters' Comprehensive Dictionary defines disparage/disparagement to mean, to speak of slightingly, undervalue, to bring discredit or dishonor upon, the act of depreciating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth, and degradation. The Conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents or omissions of others in breach of duty or contravention of a right imposed or conferred by law rather than by agreement'. If a competitor makes the consumer aware of his mistaken impression, the Plaintiff cannot be heard to complain of such action. I find it difficult, nay impossible, to hold a party liable for libel when all that has been stated by the competitor is the truth. Truth is always a complete defence against any assault or challenge regardless of whether any damage is sustained as a result of it. It is indeed unfortunate that the Government has not established an authority armed with sufficient powers to put a stop to false advertising. It is not difficult to distinguish between claims that are exaggerated and those which are false; the latter should be stopped by a Regulatory Authority. The public perception is that Dettol soap shares the same medicinal and curative qualities as the Dettol liquid. It matters little whether this misunderstanding has been contrived by the manufacturer or has developed in the consumers mind independently. However, in the present case it is the Plaintiff's own averment that this belief has been induced by it and neverthel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle was inserted with any special reference to the plaintiff. It does not appear that the defendant knew of his existence. But further, I am of opinion that this is no libel, for that it is protected by the privilege of fair discussion on a matter of public interest, it is not appearing that it was malicious. With the greatest respect to the reasons said to be contained in the above English judgment, I totally disagree with the view of Willes J., for the following reasons: (a) It deals with libel and not a commercial advertisement. (b) It contains no worthwhile reasons. (c) English Judgments are not binding on me particularly when Dabur India's judgment (supra) of a learned Single Judge covers the issue. (d) It proceeds on the footing that the defendant was not aware of the plaintiff's existence. 20. The practice of undue obeisance to English jurisprudence without any thought to the merit and reasoning of such judicial wisdom should also be discouraged. 35. In Karamchand Appliances Pvt. Ltd v. Sh. Adhikari Brothers and Ors. the Delhi High Court was concerned with mosquito repellents ALL OUT and GOOD NIGHT. The offending advertisement showed a lady rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action for disparagement under the Lanham Act. Disparagement of goods: A statement about a competitor's goods which is untrue or misleading and is made to influence or tends to influence the public not to buy. 37. In Eureka Forbes Ltd.,-v.- Pentair Water India (P) Ltd 2007 4 K.L.J. 122, the Karnataka High Court also followed the ratio laid down in all the aforesaid rulings and granted an injunction restraining the defendant from disparaging either UV water purifiers in general or the plaintiff's product 'Aquaguard' in particular. 38. So far the issue does not appear to have gone upto the Apex court for an authoritative pronouncement of the law on the point, except in a case arising out of an interim order of injunction granted by the M.R.T.P. Commission in Hindustan Lever Ltd v. Colgate Palmolive India Ltd AIR1998SC526 . In the said case, an order passed by the MRTP Commission in an injunction application was under challenge in an appeal under Section 55 of the MRTP Act before the Supreme court. In the said case also, the subject matter of dispute was an advertisement issued by Hindustan Lever Ltd., claiming that its New Pepsodent toothpaste was 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such unfair or deceptive act or practice is defined in Sections 12 and 15 U.S.C. 52, as the dissemination of any false advertisement likely to induce the purchase of Food, Drugs or Cosmetics. The Act also defines false advertisement in Section 15(a)(1), 15 U.S.C. 55(a)(1) as an advertisement which is misleading in a material respect . DEVELOPMENTS IN U.K. 42. In England, all advertisements are subject to a combination of statute, common law and self-regulation. The Advertising Industry in U.K., has been successful in self-regulation. Self-regulation of non-broadcasting advertising began in 1961 when the Advertising Association established the Committee of Advertising Practice (CAP). The Advertising Standards Authority (ASA) was established in 1962 to ensure compliance with the CAP Code. ASA handled complaints about non-broadcast advertisements. There are 2 Committees known as Committees of Advertising Practice ' CAP (Broadcast) and CAP (Non Broadcast) which are independently administered by the Advertising Standards Authority (ASA). 43. The Advertising Standards Authority regulates the content of advertisements, sales promotion and direct marketing in the U.K. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te or be confusing as to value or use of the product; (iii)advertisements should indicate where a comment is an opinion and not a statement of fact; (iv)advertisements should not encourage unsafe, violent or anti-social behaviour; and (v)advertisements should state prices clearly, prices must relate to the product advertised and prices must match illustrations. The more specific rules relate to sensitive matters, such as children, alcohol, cigarettes, financial products and services and health and safety products and services. 46. All Broadcast Advertisements in U.K., are vetted before transmission, as a matter of course. Similarly, all TV Commercials are vetted by an agency known as Clearcast , previously known as the Broadcast Advertising Clearance Centre. All National Radio Commercials are vetted before broadcast by Radio Advertising Clearance Centre. Crossborder complaints are now handled by European Advertising Standards Alliance (EASA) which seeks to maintain high standards across the 25 European Union Member States. Clearcast (formerly known as BACC) is responsible for pre-transmission examination and clearance of Television Advertisements. As part of their l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est calculated to secure high standards. The standards objectives include among other things, the prevention of advertising which may be misleading, harmful or offensive, in Television and Radio services. Interestingly one of the standards objectives under Section 319 of the Act is to see that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners or of otherwise influencing their minds without their being aware or fully aware of what has occurred. 49. The above developments make it clear that after De Beers case 1975 (2) All.E.R 599, much water has flown in U.K., and hence all the 5 principles enunciated in the earliest case in Reckitt Colman v. M.P. Ramachandran by the Calcutta High Court in 1996 and followed by the other High Courts until recently, may not, in my humble opinion, reflect the development of law on the issue, as on date, worldwide. To recapitulate, the first 2 principles laid down in M.P. Ramachandran's case were (1) that a person is entitled to claim that his product is the best in the world, even if it is untrue and (2) that while doing so he would also be entitled to claim that his product is better th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1978 (xi)The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution)Act, 2003, prohibiting the advertisement of Cigarettes and other Tobacco Products (xii)The Cable Television Networks (Regulation) Act, 1995 prohibiting (under Section 6) the transmission of advertisements on the cable network, which are not in conformity with the Advertisement Code, set out under Rule 7 of the Cable Television Network Rules, 1994. 51. The Advertisement Code set out under Rule 7 of the Cable Television Network Rules, 1994 does not deal with false, misleading or disparaging advertisements. The code seeks to prohibit advertisements offending morality, decency and religious susceptibilities of the subscribers. Rule 7 (2) of the said Rules, prohibits any advertisement-- (i) which derides any race, caste, colour, creed and nationality (ii) which is against the Constitution (iii) which tends to incite crime, disorder, violence or breach of the laws or glorifies violence or obscenity (iv) which presents criminality as desirable (v) which exploits the national emblem (vi) which projects a derogatory image of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned or old goods as new goods; (iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have; (v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services; (vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof; Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence; (vii) makes to the public a representation in a form that purports to be --- (i) a warranty or guarantee of a product or of any goods or services; or (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unfair trade practice that it includes any false representation that the goods are of a particular standard, quality, quantity, grade, composition, style or mode. It also includes the making of a false or misleading representation concerning the need for or the usefulness of any goods or services. Section 36A(1)(vii) makes even a warranty or guarantee of performance efficacy or length of life of a product or of any goods not based on adequate or proper tests, as an unfair trade practice. Section 36A(1)(x) makes a false or misleading fact disparaging the good, services or trade of another person as an unfair trade practice. 55. However, The MRTP Act, 1969 is sought to be repealed by Section 66 of The Competition Act, 2002 ( Section 66 does not appear to have been notified so far). But fortunately, the power to enquire into complaints of unfair trade practices is also vested with the Consumer Forum, in view of the fact that the provisions of Section 36A of MRTP Act, 1969 (extracted above) stands imported verbatim into the Consumer Protection Act, 1986 by the Amendment Act 50 of 1993. The definition of unfair trade practice found in Section 36A(1) of the MRTP Act, 1969, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependent agency or Government would be able to play the role of supplying information more accurately to the consumers on which they could rely with greater certitude. By persistent repetition, the tastes and ideas of a society can be and have been changed. (Incidentally, the phrase Pelion upon Ossa used by K.K. Mathew., J in the above article refers to Greek mythology, in which the giants Otus and Ephialtes, attempted to defeat the gods by putting mount Ossa upon mount Olympus and mount Pelion upon mount Ossa to reach the sky. But they were killed by Apollo. Therefore the phrase is normally used to signify massive but fruitless efforts, piling difficulty upon difficulty) 58. The Constitutional status of a Commercial Advertisement was considered by the Supreme Court in Hamdard Dawakhana v. Union of India 1960CriLJ671 . It was held therein that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed . The Constitution Bench of the Apex Court held in that case that when an advertisement takes the form of a Commercial Advertisement which has an element of trade or commerce, it no longer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting and publishing the list of subscribers on the ground that they alone had exclusive right to do so. When the matter went up to the Supreme Court, the Supreme Court held in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd AIR1995SC2438 that publication of advertisements is a free commercial speech and hence protected under Article 19(1)(a) of the Constitution. Some portions of the said decision are of relevance for the case on hand and hence they are extracted hereunder: 23. Advertising as a commercial speech has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of commercial speech . In relation to the publication and circulation of newspapers, this Court in Indian Express News ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sinformation, misinformation and non-information, all equally create an uniformed citizenry which would finally make democracy a mobocracy and farce. 63. Even in U.K., the concern to protect free speech is reflected in the approach to interim injunctions in claims of malicious falsehood. (Microdata v. Rivendale Ltd 1991 FSR 681 and Macmillan Magazines Ltd v. RCN Publishing Co. Ltd (1998) FSR 9. In Bestobell Paints Ltd v. Bigg (1975) FSR 421, the defendant alleged that the plaintiff's paint was of poor quality, to put pressure on them to settle a claim arising from its purchase and use. Oliver J., while refusing to grant an injunction, held as follows: An interlocutory restraint in any case that is not obvious would operate as an unjust fetter on the right of free speech and the defendant's liberty (if he is right) to speak the truth In the interests of freedom of speech, the Courts will not restrain the publication of a defamatory statement, whether a trade libel or a personal one, where the defendant says he is going to justify it at the trial of the action, except where the statement is obviously untruthful and libellous. The above rule summarised in Bestobel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngless, if free commercial speech is clipped. The law as it developed from the decision of the Calcutta High Court in Reckitt Colman v. M.P. Ramachandran upto Godrej Sara Lee case(Delhi High Court), on the basis of English precedents, recognises the right of producers to puff their own products even with untrue claims, but without denigrating or slandering each other's product. But the recognition of this right of the producers, would be to de-recognise the rights of the consumers guaranteed under the Consumer Protection Act,1986. To permit 2 rival traders to indulge in puffery, without denigrating each other's product, would benefit both of them, but would leave the consumer helpless. If on the other hand, the falsity of the claim of a trader about the quality and utility value of his product, is exposed by his rival, the consumer stands to benefit, by the knowledge derived out of such exposure. After all, in a free market economy, the products will find their place, as water would finds its level, provided the consumers are well informed. Consumer education, in a country with limited resources and a low literacy level, is possible only by allowing a free play for the trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould show that 4 types of representations are categorised as unfair trade practices namely (1) false representations falling under sub-clauses (i), (ii) and (iii); (2) representations which may not necessarily be false but are nevertheless incorrect coming under sub-clauses (iv) and (v); (3) warranty or guarantee coming under sub-clauses (vii) and (viii); and (4) false or misleading representations falling under sub-clauses (vi), (ix) and (x). If an advertisement contains a false representation within the meaning of sub clauses (i) to (iii) or an incorrect representation within the meaning of sub clauses (iv) and (v) or a warranty or guarantee within the meaning of sub clauses (vii) and (viii) or a false or misleading representation or fact within the meaning of sub clauses (vii), (ix) and (x) of Clause (1) of Section 2(1)(r) of the Consumer Protection Act, then an action may lie. (f) In the light of the above statutory prescription, it is doubtful if false claims by traders, about the superiority of their products, either simplicitor or in comparison with the products of their rivals, is permissible in law. In other words, the law as it stands today, does not appear to tolera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly satisfactory. The advertisement certainly gives out an impression that Anchor is the only toothpaste containing all the three ingredients, while it is in fact not. There are other toothpastes in the market which contain all the three ingredients. Similarly, the use of the word first is not in relation to the slogan all round protection , as is sought to be projected. It gives an impression as though historically it is the first to give such protection. The respondent has not come out with any scientific basis for such a claim. Therefore the usage of the words only and first actually falls within the meaning of Unfair Trade Practice under Section 2(1)(r)(1)(i) and (vi) of the Consumer Protection Act, 1986. The claim made by the respondent tantamounts to a false representation that the goods are of a particular standard, quality and composition. It also tantamounts to a false or misleading representation concerning the need for or the usefulness of their goods. However, I do not think that the claim made by the respondent falls within the meaning of Unfair Trade Practice under Section 2(1)(r)(1)(x), namely, false or misleading facts disparaging the goods, services or trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Consumer Protection Act, it is seen that the word complaint is defined under Section 2(1)(c) of that Act to include an allegation of unfair trade practice adopted by a trader or service provider after the enactments of Amendment Acts 50 of 1993 and 62 of 2002. Section 13(3B) inserted under Amendment Act 62 of 2002 with effect from 15-3-2003, enables the Consumer Forum to pass interim orders. Similarly, Section 14 (1) (hc) inserted under the very same Amendment Act 62 of 2002, has enlarged the scope of a final order that could be passed by a Consumer Forum. It reads as follows: 14. Finding of the District Forum--- (1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely: ... ... (hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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