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TMI Blog2010 (2) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... ot arise. To this extent, we confirm the view taken by a learned Single Judge in the impugned order. 4. The commercial in question is in Hindi but for convenience, the story board is reproduced below in Hindi (as it appears) and its translation in English. (Editor: The text of the vernacular matter has not been reproduced. Please write to [email protected] if the vernacular matter is required.) 5. The submission of the Appellant is that its product Odomos is an extremely popular mosquito repellant cream and it enjoys over 80% of the market share all over the country and in some parts of the country it enjoys a 100% market share. The sales of the Appellant's product run into crores of rupees and the advertisement and promotion expenses also run into crores of rupees. 6. It is averred that the commercial of the Respondents' product was telecast on a news channel on 8th October, 2009. We are told that it has appeared on several occasions thereafter. According to the Appellant, the commercial disparages its product and, therefore, the Respondent should be injuncted from further telecasting it. It is submitted that even though there is no direct or overt referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 .... 11. Earlier, the Supreme Court referred to Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1975) 421 US 748 and observed in paragraph 15 that it is almost settled law in the United States that though commercial speech is entitled to the First Amendment protection, the Government was completely free to recall commercial speech which is false, misleading, unfair, deceptive and which proposes illegal transactions. 12. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. (1999) 7 SCC 1, the Supreme Court observed in paragraph 36 of the Report that a distinction would always have to be made and latitude given for an advertisement to gain a purchaser or two. This latitude cannot and does not mean any permission for misrepresentation but only a description of permissible assertion. In this context, reliance wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (32) PTC 677 (Del). [It] is one thing to say that the defendant's product is better than that of the plaintiff and it is another thing to say that the plaintiff's product is inferior to that of the defendant. 16. In Pepsi Co. it was also held that certain factors have to be kept in mind while deciding the question of disparagement. These factors are: (i) Intent of the commercial, (ii) Manner of the commercial, and (iii) Story line of the commercial and the message sought to be conveyed. While we generally agree with these factors, we would like to amplify or restate them in the following terms: (1) The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product? In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal adjudicator to decide what is best for him or her. 19. Having said this, we are of the opinion after having gone through the commercial not only in its text (as reproduced above) but also having watched it on a DVD that there is absolutely nothing to suggest that the product of the Appellant is targeted either overtly or covertly. There is also nothing to suggest that the commercial denigrates or disparages the Appellant's product either overtly or covertly. There is also no hint whatsoever of any malice involved in the commercial in respect of the Appellant's product - indeed, there is no requirement of showing malice. 20. Learned Counsel for the Appellant submitted before us that since his client has over 80% of the market share in the country and a 100% market share in some States, the obvious target of the commercial is the product of the Appellant. In our opinion, this argument cannot be accepted. The sub-text of this argument is an intention to create a monopoly in the market or to entrench a monopoly that the Appellant claims it already has. If this argument were to be accepted, then no other mosquito repellant cream manufacturer would be able to advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted in a case such as the present on an averment based on a perception. As mentioned above, a plaintiff should not be hyper-sensitive. So far as this case is concerned, we are left with an impression that the Appellant is being hyper-sensitive. It does appear that the entry of another product in the market may challenge the monopoly or the near monopoly of the Appellant and this Court is being used to ward off that challenge through the injunctive process. 23. Finally, we may mention that Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. 1999 (19) PTC 741 was referred to for the following propositions relating to comparative advertising: (a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (b) He can also say that his goods are better than his competitors', even though such statement is untrue. (c) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others. (d) He however, cannot, while saying that his goods are better than his competitors', say that his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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