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TMI Blog2012 (7) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... rporated under the provisions of the Companies Act 1966 and carries on business of manufacturing and selling of consumer products including mosquito repellents. The plaintiffs claim to be a market leaders in the field of mosquito repellent in India. The defendant No.2 is also a public limited company incorporated under the Companies Act and carries on business of selling mosquito repellents and is competitor of the plaintiffs in the field of mosquito repellents. The plaintiffs are manufacturing mosquito repellents in various types such as mats, refills, coils and liquid vaporizers under the trademark Good Knight . According to the plaintiffs, the mosquito repellents with a trademark Goodnight are sold since 1984. It is the case of the plaintiffs that the mosquito repellents of the plaintiffs, in particular, Good Knight liquid vaporizer mosquito repellent bears distinctive label which is predominantly red in colour with a thin silver lining, being an essential predominant feature of its packaging/ trade dress. It is the case of the plaintiffs that the plaintiffs came to know recently that the defendants have launched three commercials on television which are disparaging the mosquit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Delhi High Court in the case of Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd., MIPR 2010 (3) 0314 Del.; Reckitt Benckiser (India) Ltd. v. Hindustan Lever Limited, 2008 (38) PTC 139; Dabur India Limited v. Colgate Palmolive India Ltd., AIR 2005 Del. 102 and of Madras High Court in the case of Annamalayar Agencies v. VVS Sons Pvt.Ltd. Ors., 2008 (38) PTC 37 (Mad.) and of Calcutta High Court in the case of Reckitt Colman of India Ltd. v. M.P. Ramchandran, 1999 PTC (19) 741. 4. As against this, Shri Chagla, learned senior counsel appearing for the defendants submits that apprehension of the plaintiffs that the advertisements in question tries to disparage the product of the plaintiffs is totally ill-founded. It is submitted that the part of the advertisement, which according to the plaintiffs disparage their product, is seen hardly for a second. He submits that it is improbable that any ordinary person would identify the said bottle shown in the beginning of the advertisement to be that of the plaintiffs' product. Learned Counsel submits that the advertisement is required to be seen as a whole. Even the first part to which the plaintiffs objects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maganlal Kuberdas Kapadia v. Themis Chemicals Ltd.) decided on 22nd April 1991. 5. I will first deal with the contention of the defendant that the plaintiff is not entitled to equitable relief on the ground of suppression of material facts. No doubt, the law on the point is very clear that if a party seeking equitable relief approaches this Court by suppressing some vital material which would have bearing on the issue as to whether relief could be granted in its favour or not, then such party would not be entitled to any relief from this Court. The principles that who seeks equity must do equity and a party coming to the Court must come with clean hands are well settled. In that view of the matter, though various judgments are cited in support of the said proposition, I do not find it necessary to go into that aspect of the matter. The only question is as to whether the alleged suppression is first of all suppression or not and even if it be, whether such suppression is of such a nature which would have bearing upon the question of grant of relief in favour of the plaintiff or not. The defendants allege that though the advertisements of the defendants are published in various ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the manufacture 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. 8. For appreciating the rival submissions it will also be necessary to reproduce the story board of three advertisements which is as under: Story Board of Advertisement No.1. Video Audio Film opens on a manholdinga racket. Standing in a room. The man is seen switching on his liquid vaporizer machine. While the man sits to rest, mosquitoes start disturbing him so he shooing themwithhis racket. VO:What you are upto,getting ready to play inWimbledon?... The mosquitoes continue to trouble him so he stands up on his chair and tries killing them by waving his racket furiously. VO:... Listen Sir, MissPadukonewill be reallyimpressed. He gets really fed up of the mosquitoes, and continues shooing them with racket. VO:Oh master! What are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Audio Film opens on a man.Standing in a room. Theman is seen switching onhis liquid vaporizer machine. Cut to a shot where a boyis seen playing while thisman is trying to kill themosquitoeswith his hand. The camera zooms out toshowthe entire room.While the man is trying tokill mosquitoes with his handfuriously. MVO €œAre you performing afolkdance? Orwarming up your hands? € The man, while trying tokill the mosquitoes, sitsdown to kill mosquitoesnearthe boy playing. MVO €œAre you gettingready to be acheerleader? € While the man continues totry killing mosquitoes nearthe boy, he accidentallytopples the structure made by the boy while the MVO says... MVO €œOr lifting your handsandplaying hifi?Or is it a new method 9. In the case of Dabur India Limited v. Colgate Palmolive India Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tt Benckiser (India) Ltd. v. Hindustan Lever Limited (supra) had an occasion to consider the advertisement of defendant therein telecast on television for promotion of its soap LIFEBOY . According to the plaintiff therein, it was allegedly disparaging the plaintiff's soap sold under the trade mark DETTOL . Again in the said case, the name of the plaintiff's product Dettol was not named in the said advertisement. The learned Judge observed thus: 22. The question which needs resolution is: whether the orange soap shown in the advertisement could be said to have a reference to the DETTOL Original soap of the plaintiff. Ext. PW1/11 are some photographs extracted from the video clip of the said advertisement. Photograph Photograph They clearly indicate the orange colour of the soap bar, the contours on the soap, the overall shape of the soap. Ext. PW1/8 is a sample of the DETTOL soap in the green coloured packaging. The new shape of the DETTOL Original toilet soap with the curved edges and the curvature in the middle is clearly displayed on the product packaging, which is further indicative of the importance given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person with imperfect recollection but, that person must be picked from the category of users of the product allegedly sought to be disparaged or slandered. 11. Again in the case of Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd. (supra), the Delhi High Court had an occasion to consider the advertisement of the defendant therein promoting its product Complan on the ground that plaintiff's product Horlicks was sought to be disparaged. However, since in the said case the product which was sought to be disparaged was directly named, the said judgment would not be of much assistance so far as present case is concerned. 12. The Madras High Court, in Annamalayar Agencies v. VVS Sons Pvt.Ltd. Ors. (supra) had an occasion to consider an advertisement wherein the plaintiff's product Parachute Coconut Oil was bottled in blue bottle, whereas defendant's product VVD Gold Coconut Oil was bottled in a green bottle. The advertisement No.1 impugned in the said case shows two coconuts, one in green colour and another in blue colour and an actress wearing green dress appears on the scene and asks a question which is natural? , and then she herself pic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such it was not disparaging the product of the defendant. The learned judgment observed thus: Therefore, in a suit of this nature one has to look at whether the advertisement merely puffed the product of the advertiser or in 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing in the commercial to suggest a negative content or that there is a disparagement of the Appellant's product. The commercial merely gives the virtues of the product of the Respondents, namely, that it has certain ingredients which perhaps no other mosquito repellent cream has, such as tulsi, lavender and milk protein. While comparing its product with any other product, any advertiser would naturally highlight its positive points but this cannot be negatively construed to mean that there is a disparagement of a rival product. That being so, whether the Appellant's product is targeted or not becomes irrelevant. 21. Learned Counsel for the Appellant further submitted that the use of expressions such as an apprehension of getting rashes and allergy or an allegation that other creams cause stickiness amounts to disparagement of the Appellant's product. We cannot agree with the submission of Learned Counsel. There is no suggestion that any other mosquito repellent cream causes rashes or allergy or is sticky. All that it is suggested is that if a mosquito repellent cream is applied on the skin (which could be any mosquito repellent cream) there may be an apprehensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does so, he really slanders the goods of his competitors and defames his competitors and their goods which is not permissible and only in such a case the Court would be competent to grant order of injunction restraining repetition of such defamation. 17. It is equally settled that to decide the question of disparagement, the following factors are to be kept in mind: (i) Intent of commercial (ii) Manner of the commercial (iii) Storyline of the commercial and the message sought to be conveyed by the commercial. Out of the above, manner of the commercial , is very important. If the manner is ridiculing or condemning product of the competitor then it amounts to disparaging but if the manner is only to show one's product better or best without derogating other's product then that is not actionable. 18. In this background, we have to consider the present matter. The first advertisement shows a man holding racket standing in the room and is seen switching on the liquid vaporizer machine. It shows that though the machine is put on the mosquitoes continue troubling him and so he starts shooing them with his racket. Thereafter standing on the chair he is shown tryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uriously, the claps go on increasing and, finally, the defendants product is sought to be glorified. 19. As already discussed hereinabove, an intent of commercial; the manner of commercial; storyline of commercial; and the message sought to be conveyed would be material. If the intent of the commercial is only for the purpose of promotion of the goods of the manufacturer, the same would not be actionable but if the intention of the commercial is disparaging the product of the plaintiff, then an action would lie. From the storyline and the manner of the advertisements in question, it can clearly be seen that the message that is sought to be given in the advertisements, is that even after the machine with product containing label alike plaintiff's product is put on, it has no effect and the mosquitoes go on troubling which require the person in the room to indulge in acrobatics etc. It is to be noted that the advertisement campaign or visual media has an immediate impact on the viewers and possibly purchaser's mind, particularly, when a well known cinestar is endorsing it. It is further to be noted that the matter has to be looked from the view point of the ordinary person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any substance. 22. However, I am of the view that if the objectionable label is removed from the bottle shown in the advertisements, then such advertisements would be permissible in view of settled law that a manufacturer, without disparaging the product of his competitor, can make claim that his product is best in the world, even though such a claim may not be true. In that view of the matter, I find that the plaintiff has made out prima facie case for grant of injunction. 23. The test of balance of convenience and irreparable injury also tilts in favour of the plaintiff. If the injunction as sought is not granted, the attempt of the defendants to defame and disparage the product of the plaintiff would continue, whereas in view of the order that I am inclined to pass the defendants can very well continue to publish the very same advertisements with a slight change i.e. removal of label from the bottle of the liquid vaporizer which is used in the advertisements in question. 24. I am, therefore, inclined to grant ad interim relief in terms of prayer clause (a). However, it is clarified that the defendant No.2 would be free to use the impugned advertisement provided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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