9911796707
TMI Blog2008 (9) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant from in any manner continuing the telecast of the impugned 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut with a Television Commercial, advertising their tooth paste "Anchor". The TV Commercial was telecast in Tamil 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court and that the plaintiff had suppressed this fact in the plaint. The respondent has also stated that they have already filed a suit for injuncting the plaintiff from using the slogan "all round 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is also contended in the counter affidavit that the Television Commercial complained of by the plaintiff contains only the positive features of the defendant's tooth paste and that there is no negative comment about the plaintiff'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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent claims that their "Anchor" tooth paste is the only tooth paste containing Triclosan, Calcium and Fluoride. The respondent also claims in the advertisement that their "Anchor" tooth paste is the first tooth paste to provide all round protection. Similarly, the advertisement shows a claim that the fluoride in "Anchor" 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 refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly after the developments that have taken place in U.K., in the recent past, to which I shall advert to later. Moreover, the law as it developed in England from the 16th century as one relating to slander of title to land and then the slander of goods, passing through Timothy White v. Gustav Mellin (1895) upto De Beers case 1975 (2) ALL.E.R.599, appears to have taken a different turn thereafter, with consumerism 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more nutritious and healthy than any other preparation yet offered. The trial Judge dismissed the action on the ground that the label was merely the puff of a rival trader and that no cause of action was disclosed. This was despite the fact that the plaintiff produced evidence from two analysts and a physician to the effect that the plaintiff's product was suitable for infants and that the product recommended by the defendant was pernicious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cery Division considered the question as to what amounted to a mere puffery and the distinction between a mere puff and an actionable disparagement. Since it is this case which is oft quoted in the decisions of various High Courts, it is necessary to look into this case in greater detail. In that case, the plaintiffs were the manufacturers of a natural diamond abrasive marketed under the Trade Mark "Debdust", used for cutting concrete. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements in disparagement of the plaintiffs' goods and if, further, on investigation those statements prove to be false and the plaintiff can show malice, the precise constitutes of which for present purposes I think it is better not to investigate, it appears to me that they must answer for it. 26. Interestingly, White v. Mellin is a case in which, in my humble opinion, the result did not follow the reasoning of the court. In that case, though 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement is not. Where, as here, the target of the advertising copy is clear, the advertising is tortious. Interestingly, the decision of the Canadian Court came in for criticism on the ground that even while finding the adjective 'purest possible' as offending, the court accepted the adjective '100% pure' as mere puffery, though both had the same connotation. LAW RELATING TO DISPARAGING ADVERTISEMENTS IN INDIA 28. Turning to the development of law 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . J, held that on account of the red blob appearing on the surface of the other bottle shown in the advertisement, it was offensive and granted an injunction to that limited extent and held as follows: 12. The settled law on the subject appears to be that a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing his goods and the same will not give a cause of action to other traders or manufacturers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim that the plaintiff's goods are inferior to those of the defendant.... It is firmly established that malice, express or implied, in the making of the slanderous statement is an essential ingredient of a cause of action for slander of title". Halsbury's Laws of England, Fourth Edition, Volume 45 defines tort as 'civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: Willes, J. - The action cannot be maintained. Assuming the article to be libellous, it is not a libel on the plaintiff; it only reflects on a class of persons dealing in such objects; and it is immaterial in this view whether they are genuine or not. If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual, which (350) there is not there. There is nothing to show that the article 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another's property in land, chattels or intangible, things or upon their quality. A falsehood that tends to denigrate the goods or services of another party is actionable in a common law suit for disparagement. The same conduct is also actionable under certain state statutes and can form the basis for an F.T.C. Complaint. There is no private federal cause 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable basis for such claim, consisting of competent and reliable scientific evidence supporting the claim. Well controlled clinical tests conducted in accordance with the criteria set forth in the order was deemed to constitute a reasonable basis for such a claim. 41. Section 5(a)(1) of the Federal Trade Commission Act, declares as unlawful "unfair methods of competition in Commerce and unfair or deceptive acts or practices in Commerce". The Act empowers the Commission to prevent such acts or practices. One 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 establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced to regulate the contents of advertisements in broadcast media such as Oftel (Office of Telecommunications), the ITC (Commercial Television), the Broadcasting Standards Council and Radio Authority. There are general rules in the non-broadcast CAP Code as well as more specific rules. The former include: (i) substantiation of claims in advertisements in that, before an Advertiser distributes a marketing communication, they should hold evidence to substantiate their claims regarding the product; (ii)advertisements should not exaggerate 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading Marketing Regulations 2008, were issued in U.K., in May 2008 in implementation of the European Union Directive. 48. Under the Communications Act, 2003, a Regulatory Body known as Ofcom (Office of Communications) was established in the U.K., as an Independent Regulator and Competition Authority for the U.K. Communications Industry. It is intended to be a super watch dog for the U.K. Communications Industry. Ofcom is enjoined with a duty to set standards for the content of programs to be included in Television Radio services as appear to have best 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of women (vii)The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibiting advertisements relating to prenatal determination of sex (viii)The Transplantation of Human Organs Act, 1994 prohibiting advertisements inviting offers for the sale of human organs (ix)The Drugs and Cosmetics Act, 1940 preventing the use of the reports of a test or analysis of the Central Drugs Laboratory for advertising a drug or cosmetic (x)The Prize Competition Act, 1955 and The Prize Chits and Money Circulation Schemes (Banning) 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, misleadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of promoting the sale, use or supply of any good or for the provision of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (1) the practice of making any statement, whether orally or in writing or by visible representation which,--- (i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or mode; (ii) falsely represents that the services are of a particular standard, quality or grade; (iii) falsely represents any re-built, second-hand, renovated, re-conditioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arket in which the business is carried on, the nature and size of business and the nature of the advertisement. Explanation --- For the purpose of Clause (2), "bargain price" means --- (a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or (b) a price that a person who reads, hears, or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold; 54. It is seen from the above definition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te as follows: The art of puffing, that is piling panegyrical superlative upon superlative like pelion upon ossa has come to stay in the art of advertisement. This is done with the intention of inflating the quality of a product and thus to commend it to the public. There are many sellers offering too many products with vide variety of characteristics changing from time to time and the self serving source of the data will inevitably render the information inaccurate. There are also many areas where key information necessary for consumers to make a sensible choice between rival brands is absent. It might be that an independent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the subsequent decisions of the American Supreme Court did not approve the ratio in the earlier one. Therefore ultimately, the Supreme Court held in Indian Express Newspapers case as follows: In view of the foregoing, we feel that the observations made in Hamdard Dawakhana case, are too broadly stated and the Government cannot draw much support from it. We are of the view that all Commercial Advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen. 61. The issue again cropped up when the Mahanagar Telephone Nigam Ltd, sought to injunct Tata Press Ltd from printing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge in our land under Article 21 of the Constitution" in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd AIR1989SC190 . Even with regard to telecasting of events such as cricket, football and hockey etc., the Supreme Court held in Secretary, Ministry of Information and Broadcasting , Government of India v. The Cricket Association of Bengal [1995]1SCR1036 that "the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained." The above view was quoted with approval in Peoples Union for Civil Liberties (PUCL) v. Union of India [2003]2SCR1136 , where the Supreme Court lamented that disinformation, 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) or to the Advertisement Code set out under Rule 7 of the Cable Television Network Rules (or the Competition Act, 2002). But there is no effective mechanism under the Cable Television Network Rules to enforce the Code. Therefore, one has to look only to the provisions of The Consumer Protection Act, 1986. 67. The advent of the Consumer Protection Act, 1986, signaled the arrival of a new era. The Statement of Objects and Reasons of the said Act recognised 2 significant rights for the consumers. They are- (1) the right to be informed about the quantity, potency, purity, standard and price of goods to protect consumers against unfair trade practices and (2) the right to consumer education. These rights would become meaningless, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of the word "complainant" under Section 2(1)(b) of the Consumer Protection Act). It may even lie before the MRTP Commission. (or the Competition Commission after it is constituted). (d) An action may lie against such an advertisement before a civil court both at the instance of a manufacturer or marketer and at the instance of a consumer (since Section 3 makes the Consumer Protection Act an additional law and not a law in derogation of any other law), provided that the advertisement in question contains a false representation coming within the 4 corners of sub-clauses (i) to (x) of Clause (1) of Section 2(1)(r) of the Consumer Protection Act. (e) A careful scrutiny of all the sub-clauses in Section 2(1)(r) of the Consumer Protection Act would 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se each other in a truthful manner, will also result in consumer education. 69. Keeping the above principles in mind, if we get back to the facts of the present case (which we have perhaps left way behind) it is seen that the advertisement in question contains four claims on the part of the defendant namely, (i) that Anchor is the only toothpaste containing all the three ingredients, namely Calcium, Fluoride and Triclosan, (ii) that Anchor is the first all round protection toothpaste (iii) that Anchor toothpaste gives 30% more cavity protection and (iv) that the Triclosan contained in Anchor is 10 times more effective in reducing Bacteria. 70. As stated earlier in paragraph-14 above, the explanation given by the respondent to the use of the words "only" and "first" are not actually 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant of injunction but on the facts and circumstances of each case ' the relief being kept flexible; (v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case; (vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise. 73. Thus public interest is one of the tests prescribed by the Apex court in the above case for clinching the issue on such matters. Keeping this salient principle in mind, if we get back to the provisions 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 effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
