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TMI Blog2013 (4) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... ion came up first before this Court on 8th February, 2013 when summons/notice thereof was issued. The plaintiff soon thereafter instituted CS(OS) No. 319/2013 with respect to advertisements in the Print Media and summons/notice thereof was also issued on 18th February, 2013. The counsels for the parties were heard for the purpose of interim relief from 25th February, 2013 till 18th March, 2013 when orders on these applications were reserved. 2. It is the case of the plaintiff:- (i). that the plaintiff and the defendant are competitors in the cooking oil segment; (ii). that the plaintiff's cooking oil sold under the Trademark SAFFOLA is a blended oil sold in four variants with composition (a) of SAFFOLA GOLD of 80% Refined Rice Bran Oil (RBO) and 20% of Refined Safflower Seed Oil; (b) of SAFFOLA TASTY of 60% Refined Corn Oil and 40% of Refined RBO; (c) of SAFFOLA ACTIVE of 80% of Refined RBO and 20% of Refined Soybean Oil; and, (d) of NEW SAFFOLA of 60% of Refined Safflower Seed Oil (Imported, High Oleic) and 40% of Refined RBO; (iii). that the defendants product Fortune RBO is claimed to be composed only of RBO; (iv). that the plaintiff's product SAFFOLA has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the product with which comparison is made is the same as the distinctive container/carton of the product of the plaintiff, leaving no manner of doubt in the minds of the viewers that the comparison of the product of the defendant is with the product of the plaintiff; (c). that the defendant is claiming its product to be better for the reason of having the highest Oryzanol content-however under the Food Act and the Notifications thereunder, RBO is mandatorily required to have Oryzanol content of not less than one percent-since the product of the plaintiff is a blend of RBO and other oil, the same is bound to have less Oryzanol than the product of the defendant composition whereof is only of RBO; it is argued that the defendant thus, by providing 1000 mg Oryzanol in every 100 gm of its oils is just complying with statutory requirements and without disclosing so is deriving a mileage; (d). that the claim of the defendant of the health benefit of Oryzanol projected in its advertisements having been upheld, is false; (e). that the documents relied upon by the defendant in support of the health benefits claims advertised by it are from sponsored agencies or from articles in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only so long as it does not discredit or denigrate the Trademark or trade name or disparages the product of the competitor; Dabur India Ltd. Vs. Vs. Colortek Meghalaya Pvt. Ltd. (2010) 44 PTC 254 Del (DB) holding that in view of the law laid down by the Supreme Court in Tata Press Ltd. Vs. MTNL (1995) 5 SCC 139 false, misleading, unfair or deceptive advertising is not protected commercial speech and the earlier judgments holding that a tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue and to say that his goods are better than his competitors', even though such statement is untrue are no longer good law. It was further held that while hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if does so, the advertiser must have some reasonable factual basis for the assertion made and it is not possible for anybody to make an off-the-cuff or unsubstantiated claim that his goods are the best in the world or that his goods are better than that of a rival. (l). It is argued that the health provisions were not noticed in the aforesaid judgments. 4. Per contra, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c case of the advertisement disparaging the product of the plaintiff and cannot now be permitted to base its case on generic disparagement as has been sought to be argued; (xii). it is contended that the container of the other product shown in the television advertisement of the defendant is not distinctive of the plaintiff and in this regard photographs of other products with similar containers are shown; (xiii). attention is invited to Hindustan Unilever Limited Vs. Cavincare Private Limited: 2010(44) PTC 270 (Del) laying down that every disparagement is not actionable and for disparagement to be actionable it should such as to bring it within the tort of malicious falsehood and the plaintiff as a result of the same should be shown to have suffered a special damage; (xiv). reliance is placed on Dabur India Ltd. Vs. Wipro Limited 2006 (32) PTC 677 (Del) laying down that it is permissible for an advertiser to proclaim that its product is the best even though that necessarily implies that all other similar products are inferior; (xv). Reliance is placed on the Report of the Sixteenth Session of the Codex Committee on Fats and Oils recording that the delegation from India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil of India and the plaintiff cannot be said to have elected its remedy or by approaching the Advertising Council of India having given up the right of approaching this Court. 6. I have on the anvil of settled principles, carefully viewed the electronic and the print media advertisements to gauge whether any prima facie case of disparagement of the product of the plaintiff is made out. 7. The electronic/television advertisement proclaims:- (A). RBO as the healthiest oil in the world; (B). RBO is healthier than other cooking oils shown in the advertisement; (C). 100% RBO is better than other cooking oils though also having RBO but which are not 100% RBO; (D). 100% RBO is good for heart, cholesterol, immunity, skin and hormones; (E). the entire world is using 100% RBO. 8. The print media advertisement proclaims: A. Oryzanol is a heart healthy micro-nutrient with proven cholesterol lowering effect and also known to help lower bad cholesterol. B. Though other cooking oils also say the same about Oryzanol but are not rich in Oryzanol content. C. A comparison of the Oryzanol content per 100 grams of three cooking oils i.e. (i) Saffola Gold of the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the best in the world' and would not be actionable. However, the statement 'my goods are better than X's because X's are absolute rubbish' would be actionable. 12. The Division Bench of this Court in Pepsi Co. Inc. supra held that a tradesman by comparison cannot slander or defame the goods of the competitor nor call them bad or inferior. Thus comparative advertising is permissible as long as while comparing own with rival/competitors product, the latter's product is not derogated, discredited, disgraced, though while comparing some amount of 'showing down' is implicit; however the same should be within the confines of De Beers Abrasive supra and should not be of a slighting or 'rubbishing' nature. 13. The subsequent Division Bench in Dabur-Colortek echoed the same view as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claims in the advertisement of the defendant, of the requirement by the human body of 300 mg of Oryzanol daily or of the average daily consumption in India of edible oil being 33 grams, are false. 15. The Division Bench in Dabur-Colortek after laying the following propositions relating to comparative advertising:- Finally, we may mention that Reckitt 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 competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing oil also has RBO as a significant component and the plaintiff also in fact in its advertisements and website has been claiming similar if not the same benefits of Oryzanol. No challenge even otherwise, neither in the pleadings nor in the arguments is made to the benefits of Oryzanol or as aforesaid to the daily requirement of the human body of Oryzanol or to the Oryzanol content in the products of the plaintiff and of the defendant. In the electronic/television advertisement the product of the plaintiff is not even named and in the print media advertisement the product of the plaintiff though is named but only to represent its Oryzanol content and price and which is not stated to be wrong or false. I have not found any part of either of the impugned advertisements to be denigrating the product of the plaintiff. The only thing which the advertisements do is to inform the consumer that the Oryzanol content in the product of the plaintiff is less than that required by the human body and that the Oryzanol content in the product of the defendant satisfies the daily requirement for Oryzanol of the human body. The advertisements thus amount to nothing but comparing the advantages of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disparaging are found (at least by me) to have interpreted it as has been interpreted by the Division Bench in Dabur - Colortek i.e. of overruling the settled principle of law relating to comparative advertising. However having said so, this Bench is bound by what the Division Bench has said in Dabur-Colortek. 21. However even applying Dabur - Colortek, I am not able to find an actionable case in favour of the plaintiff. This is for the reason that the intent, manner and storyline and message of the advertisement of the defendant is of its product containing a higher quantity of Oryzanol (and which follows from being 100% RBO) sufficient to meet the daily requirement of human body of Oryzanol, and which the other products do not, is better. The storyline and the message conveyed by the advertisements of the defendant is not about the comparative cholesterol lowering ability of Oryzanol and which is shown to be higher in the case of a blend of RBO with Safflower Oil in the ratio of 70:30 than 100% RBO; rather the advertisement/website downloads of the plaintiff handed over during the course of arguments themselves inform the said fact to the customers. The Division Bench in Dabu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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