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TMI Blog1998 (8) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the plaintiff that for the purpose of promoting the sale of Ujala the defendant are seeking to project as if the goods of the plaintiff are inferior to that of the defendants. I have been shown certain advertisements from which it appears that although the name of the plaintiff or the brand name of the plaintiff has not been mentioned in the container in which the products of the plaintiff are sold but the same has been specially shown and identified as Blue . It further appears that similar advertisements have also been published even in to-day's newspapers. In those circumstances the plaintiff has filed this suit and has made this application seeking an ex parte ad interim order. The defendants in the matter of promoting sale of their products are free to take such steps as they may be advised but they cannot project their goods in such a way as to represent to the world at large that the goods of somebody else is inferior to theirs and thereby affect the market of that third party. It appears that the defendants have done the same by putting the advertisements which have been shown to the court by the learned counsel appearing on behalf of the plaintiff. In the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have stated that their goods are better than others, which they are entitled to, in the subject advertisements. 6. In support of his first contention Mr. Chakraborty submitted that in addition to the petitioner there are a large number of manufacturers of blue whitener and all of them or a large number of them use deep blue containers to pack their products for presenting the same to their customers. In support of such submission, Mr. Chakraborty produced in Court 7 or 8 containers of different manufacturers. All of them are deep blue in colour with white caps. Mr. Chakraborty also produced a container of the petitioner, which too is deep blue in colour with a white cap. None of the containers so produced by Mr. Chakraborty, except the container of the petitioner as produced by him, has in any way a resemblance with the container of blue whitener depicted in the advertisements, being the subject matter of these proceedings. Therefore, at this stage it will not be proper on my part, to accept the submission of Mr. Chakraborty that the respondents were projecting blue whitener in general in their advertisements and were not pointing out the blue whitener produced and sold by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff's goods and at page 160 of the Report observed After all the Advertisement is of a very common description, puffing, it may be extremely and in an exaggerated fashion, these particular goods, Vance's good....... the object of the publication must be to injure another person, and that the advertisement is not published bona fide merely to sell the advertiser's own goods.... and at page 161 of the report observed There is nothing to shew that the object of the defendant was other than to puff his own goods and so sell them.... and at page 164 of the report observed But, my Lords, I cannot help saying that I entertain very grave doubts whether any action could be maintained for an alleged disparagement of another's goods, merely on the allegation that the goods sold by the party who is alleged to have disparaged his competitor's goods are better either generally or in this or that particular respect than his competitors' are.... I am dealing with the class of cases which is now before us, where the only disparagement consists in vauncting the superiority of the defendant's own goods . The other law Lords of the House of Lords concurred with L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pamphlet containing a report of laboratory experiment of comparing the performance and qualities of those two products and wherein the goods of the plaintiff have been tainted. The Learned Judge at page 605 of the report held that the statement My goods are better than X's is only a more dramatic presentation of what is implicit in the statement, My goods are the best in the world and such a statement would not be actionable but if the statement is My goods are better than X's, because X's, are absolutely rubbish the statement would be actionable. This proposition was accepted to be the proposition of law laid down by the House of Lords in White Vs. Mellin. 10. From paragraph 1867 of Clerk Lindsell on Torts, which has been cited by Mr. Chakraborty, it appears, that the motive of the defendant in this action is spite, a desire to injure the plaintiff as an end itself, and does not include a desire to benefit the defendant at the plaintiff's expenses; a desire to draw away the plaintiff's customers is in itself perfectly legitimate. 11. From the law discussed above it appears to me that the law on subject is as follows: I) A tradesman is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quid packed in the container comes out drop by drop unless one squeezes the container, which is made of plastic. It has then been shown in the advertisement that blue is a product of obsolete technology and therefore, it cannot dissolve completely in water and as such forms sediments at the bottom of the wash bucket. The said assertion it appears to me is not a presentation of a technological disadvantage of the product of the petitioner as was asserted by Mr. Chakraborty but an insinuation to the product itself. The same is clarified by the last assertion contained in advertisements to the effect that blue leaves dirty blue patches on clothes because it forms sediments. The insinuation, therefore, is sediment of blue leaves blue patches on freshly washed cloths since blue cannot dissolve in water. When admittedly blue is used only for the purpose of whitening freshly washed clothes and someone represents that such whitener leaves blue patches on freshly washed clothes, it appears to me, he represents that it is not a whitener at all. The whole impact of the advertisement is to project that the expensive product of the petitioner by reason of its container gushes out uncontrollably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products are market leaders in Kerala; in Tamil Nadu also his products became market leaders after vanquishing the previous market leader Regal Liquid Blue as well as, the second in the line, Robin Liquid Blue. He has denied that he is engaged in the business of selling and manufacturing whiteners similar to that of the plaintiff. He has sought to distinguish the class of his products and the class of the products sold by the plaintiff and by others. He has stated that blue is sold by the plaintiff and by other manufacturers. He has given names of eleven manufacturers of blue apart from the plaintiff. He has stated that his product is not blue, but is a different superior fabric whitener. He then stated that after his products were introduced in West Bengal, the plaintiff published advertisements disparaging his products. 16. On the substance of the advertisements he has stated that the bottle of dispenser referred to in the advertisements does not refer to Robin Blue because the name Robin Liquid Blue' has not been printed. He has added that the bottle of dispenser with the word blue' printed on it meant an ordinary bottle of blue. He then stated that the registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket and also that technology used by all the blues manufacturers is obsolete. He asserted that the statements made in the advertisements are correct and true inasmuch as they apply to the generic class of all blues. He also asserted that blues leave sediment after use and that can never be fully dispersed. He has also asserted that there is every factual basis for the statements made in the advertisement which has referred to all blues produced in general. 19. In sum and substance therefore the defendant No. 1 contended as follows:- (i) In the advertisement the defendant No. 1 did not project the product of the petitioner; (ii) In the advertisement the defendant No. 1 projected the entire class of blues; (iii) Since the product of the petitioner was not projected in the advertisement, the question of disparaging the product of the petitioner did not arise and as such petitioner has no cause of action; (iv) The statements made in the advertisement regarding Blue are all correct and the same had been made to show the technological advancement of the product of the defendants. 20. In support of the contention that defendant No. 1 could publish such advertisement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the garb of doing the same directly or indirectly contended that the product of the other trader is inferior. There cannot be any dispute that in the concerned advertisements blue was stated to be of inferior quality. Although, for having depicted the container and the price in the advertisement together it is difficult to proceed on the basis that the defendant No. 1 was not referring to Robin Blue, but assuming in the advertisement insinuations are not made against Robin Blue and the same were directed to all blues as has been stated in no uncertain terms in the affidavits, can it be said that it was not made against Robin Blue? The answer is a definite no , because Robin Blue is also a blue. 23. It was sought to be contended that insinuations against all are permissible, though the same may not be permissible against one particular individual. I do not accept the same for the simple reason that while saying all are bad it was being said all and everyone is bad and anyone fitting the description of everyone is affected thereby. 24. It is true that one can boast about technological superiority of his product and while doing so can also compare the advantages of his product ..... 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