9911796707
TMI Blog1996 (5) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... e acrylic base allegedly tends to form a film on the footwear which over a period of time is liable to crack and thus damage the footwear. It is, Therefore, stated that the liquid polish of the plaintiff having wax rich formula is better than the other polishes. The liquid polish of the plaintiff is sold and marketed in angle neck bottles which is alleged to have easy application of the polish to the footwear. An imported applicator is alleged fitted on to the bottle which is strengthened by Chemical flocking on the surface as also by riveting the sponge on to the plastic applicator base. The plaintiff has claimed its product to be superior than the similar product of the other competitors in every respect and it is stated that the plaintiff has 68% market share of the liquid shoe polish whereas the defendant has only 20% of such share. (2) The defendant with a view to promote its product is displaying an advertisement through the electronic media. The advertisement of the defendant shows a bottle of KIWI . from which the word KIWI is written on white surface which does not drip as against another bottle described as OTHERS which drips. The product shown to have been flowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the defendant from displaying the impugned advertisements and issuing Point of Sale posters till the decision of the suit. By this order, I am disposing of this application of the plaintiff for the grant of ad-interim injunction. (5) The defendant has filed a counter- affidavit by way of written statement and it is alleged that there is nothing disparaging or defamatory conveyed through the said advertisements against the plaintiff, as no reference whatsoever has been made to Cherry Blossom Premium Liquid Wax Polish in any of the advertisements in question. In the alternative, it is suggested by the defendant that even if a reference in the advertisement can be related to the plaintiff, there was nothing unlawful about the statement made by the defendant in the said advertisement as it was a true statement of fact and substance and, according to the defendant, no injunction can be granted against the said defendant. It is alleged that defendant had not made any false or misleading statement for the following reasons:- A)The claim made by the defendant is that KIWI has more natural wax than any other brand or liquid shoe polish. Kiwi is richer and thicker and gives you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esign, contours, brand or wax and the same, Therefore, could not be identified with the plaintiff's product; that the plaintiffs Cherry Blossom Liquid Shoe Polish container is not shown in the advertisement and, Therefore, it is alleged that the advertisement being wholly educative in nature, defendant had every right to exhibit its quality and characteristics of its product and the same cannot be said to be disparaging or defamatory to the plaintiff nor can it be said to be an exaggeration of the quality of the product of the defendant. (7) At the outset, however, the defendant has agreed to withdraw the Point of Sale posters which were circulated at the retail outlets and the markets and has also agreed to delete the red blob on the surface of Brand X which, according to the plaintiff, represent the Cherry on the bottle of the plaintiffs products. With the withdrawal of the Point of Sale posters and the deletion of the red bob on the surface of Brand X , allegedly representing the Cherry appearing on the bottle of the plaintiff, the question which remains to be considered is whether the bottle which is shown in the commercials in the electronic media can still be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disparaged the products of the plaintiff but also have tried to impress upon the consumers that their products are better than the plaintiffs and plaintiff, according to him, is, Therefore, entitled to an injunction. The Calcutta High Court had, in that case, injuncted the defendant from publishing their advertisement whereunder the product of. the plaintiff was shown in a disparaging and defamatory manner. The facts in the said case were that the plaintiff was the manufacturer of blue whitener under the name and style of Robin Blue . The defendant had also started manufacturing blue whitener and with a view to promote their products they issued an advertisement allegedly making disparaging representations to the plaintiffs Robin Liquid Blue. The defendants had depicted the product of the petitioner showing the container in which the product of the petitioner was sold and in regard to which the petitioner had a registered design. It was further shown in the advertisement that the product contained in the said container was priced at RS.IO.00 . By giving the price, the respondent had in no uncertain terms identified the product of the petitioner since the only blue whitener sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, then the Court is also competent to grant an order of injunction restraining repetition of such defamation. (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 of 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. It is in this background that I have to see Whether there is any disparagement or defamation to the goods of the plaintiff in the advertisement in question. (13) The advertisement appears on the electronic media for a few seconds and it shows a bottle of Kiwi from which the KIWI is written on the white surface which does not drip as against another bottle described as OTHERS which drips. The bottle of OTHERS is shown as Brand X . The allegations are that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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