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TMI Blog2004 (5) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... question, for Dabur Chayawanprash is also a Chayawanprash as against which disparagement is made. To the same effect is the judgment of the Calcutta High Court in RECKITT COLMAN OF INDIA LIMITED VS. M.P.RAMCHANDRAN ANOTHER[ 1998 (8) TMI 627 - CALCUTTA HIGH COURT] . 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayawanprash, which is being sold not only in India but also in various other countries. It is claimed by the plaintiff that the plaintiff has a market share of 63% of the total market of Chayawanprash through India. Chayawanprash , which is an ayurvedic formation, is primarily a health tonic and has therapeutic qualities for enhancing the immunity against various diseases. 2. The defendant is also engaged in the manufacture of various ayurvedic formulations including Chayawanprash. The defendant is manufacturing the said Chayawanprash under the brand name Himani Sona-Chandi Chayawanprash. The defendant has very recently introduced a new product in the market , namely, Himani Sona-Chandi Amritprash and the same is being now advertised on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is an effort on the part of the defendant of insinuating the product of the plaintiff. It was submitted that the clear message that is being sent by airing the said T.V commercial is that consumption of Chayawanprash is not advisable during summer season and that Amritprash is more effective substitute of Chayawanprash for summer season. It was submitted that the aforesaid advertisement/T.V commercial of the product of the defendant is deceptive and dubious and an malafide attempt to do negative campaign and bringing in insinuating advertisement campaign against the product of the plaintiff. 4. The contention of the counsel for defendant on the other hand was that neither the aforesaid advertisement could be said to be defamatory n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation. 6. The aforesaid five principles were approved by this court in the decision in RE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and marketing and has a market share of 63% of the total market of Chayawanprash throughout Indian and, Therefore, is vitally interested in seeing that Chayawanprash is sold through India during all the seasons. If, on the other hand, the said product is sold and marketed only for a few months of the year and not throughout the year the business of the plaintiff is going to be vitally and prejudicially affected. It is also brought on record that the defendant has a market share of about 12% of the total market in Chayawanprash throughout India whereas in the market of Amritprash, which is a new product being brought out by the defendant, there is no other competitor in the market. Therefore, what is sought to be done by the defendant is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To the same effect is the judgment of the Calcutta High Court in RECKITT COLMAN OF INDIA LIMITED VS. M.P.RAMCHANDRAN ANOTHER (supra) 8. Mr. Chandhiok, appearing for the defendant vehemently submitted that Chayawanprash is a generic word and the plaintiff cannot have a monopoly or sole rights of the use of the said generic word and that the impugned advertisement, at any rate, did not make a slightest reference to the product of the plaintiff and on the contrary it makes reference to its own product Sona Chandi Amritprash and, Therefore, it cannot be said that there is any disparagement of the product of the plaintiff. 9. In my considered opinion, when the defendant is propagating in the advertisement that there should be no consumption of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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