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TMI Blog2006 (2) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether the plaintiff can restraint the defendant from exhibiting such an advertisement on electronic media. 3. The plaintiff company is engaged in the manufacturing and/or marketing variety of goods including coils, mats, liquid vaporizers (apparatus and refills), aerosols, oils sprays etc and destroying substances and preparations for insecticides. These products are produced and marketed under well known trademarks viz GOODNIGHT, JUMBO, HIT etc. I am concerned, in these proceedings, with the plaintiff's product traded under the trade name HIT. This product is produced by the plaintiff under two versions-one for killing cockroaches which is packed in a red colour can and other for killing mosquitoes which comes in a can with predominantly black colour. The defendant's product Mortein, on the other hand, as launched by it is meant for destroying both cockroaches and mosquitoes. Thus whereas for tackling cockroaches and mosquitoes, two different products of the plaintiff are required, the defendant's one version is sufficient for both types of insects. In the impugned advertisement, the defendant has highlighted this feature and added advantage of its product. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false statement is made for puffing up, even that is permissible. In the present case, however, the defendant has not stooped low or misled the public. What is projected is the truth and statement conveying the truth, which would not even amount to puffing up its product, is permissible in law. The sequence in which the case is built up by the defendant is the following: (a) It is the presumption of the plaintiff that the two cans shown in black and white in the impugned advertisement are that of the plaintiff. Name of the product of the plaintiff is not shown therein. Merely two colours are shown and the plaintiff's product cannot be identified with those colours. (b) Even otherwise, the plaintiff cannot have any monopoly over the colours alone. Such a case is neither established under the trade mark law nor under Designs/Copyright Act. Therefore, the plaintiff cannot allege that its products are, in any manner, disparaged by showing the two cans in black and red colour. (c) Even if it is presumed that the two cans shown in the advertisement are identified with the plaintiff's product, the advertisement is not disparaging in nature. The defendant has only projecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is easily available from specialised ad agencies like TV AD INDX which is media monitoring firm and specialises in recording new TV commercials as soon as they are first broadcast on TV channels. Documents in support of this plea are also filed. It is, Therefore, submitted that because of this concealment, even the suit itself is liable to be dismissed. In support, he relied upon the judgment of this court in the case of Satish Khosla v. Eli Lilly Ranbaxy Ltd. reported 71(1998)DLT1 . 9. Development of law on the Comparative Advertisement in this country, is a recent phenomenon though abundance of judgments of the courts in England and United States of America are available. Comparative advertising is advertisement where a party advertises his goods or services by comparing them with goods and services of another party. This is generally done by either projecting that the advertiser's product is of same or superior quality to that of the compared product or by denigrating the quality of the compared product. There is an underlying assumption that the comparative advertising benefits the consumer as the consumer comes to know of the two products and their comparative features ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s goods are bad. Accepting this cardinal principle, the Calcutta High Court in the case of Reckitt Colman of India Ltd. v. M.P.Ramchandran and Anr. (supra) after taking note of some English judgments, culled out the following propositions of law: (I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (II) He can also say that his goods are better than his competitors', even though such statement is untrue. (III) 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. (IV) 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 their goods, which is not permissible. (V) If there is no defamation to the goods or 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r services meeting the same needs or intended for the same purpose. (c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price; (d) it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor. (e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services activities, or circumstances of a competitor; (f) for products with designation of origin, it relates in each case to products with the same designation; (g) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor of the designation of origin of competing products; (h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name. 16. What is disparagement and what would constitute a disparaging message is explained in paras 12 and 13 of the judgment in the following manner: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sement in question and it gave rise to the cause of action to Dabur Chayawanprash for the reason that it is also a Chayawanprash as against which disparagement is made. 18. I may note at this stage that in Dabur India Limited v. Colgate Palmolive India Ltd. reported as 2004 29 401PTC 401 Delhi, the defendant had tried to argue to the contrary by relying upon English judgment in Eastwood v. Holmes where the court held that action cannot be maintained even if the infringing article was libellous as it was a libel on the plaintiff but reflected on a class of persons dealing in such objects. However, the court preferred to accept the view taken in Dabur India Limited v. Emami Limited (supra) and disagreed with the view of Willes, J. in the aforesaid English judgment, inter alia, on the ground that the said case dealt with libel and not a commercial advertisement. 19. In Kamarchand Appliances (supra), the court explained the reason in further detail as to why disparaging advertisement was not permissible. It was pointed out that even under the law of torts, no one can by his act of omission or commission cause to another an injury to his or her reputation or goodwill nor can a riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e product of the plaintiff meant for putting away cockroaches and other meant putting away mosquitoes are in any manner ineffective in doing their respective job. What is highlighted is that the defendant is providing a better and more convenient solution by giving two-in-one product. 23. The contention of the learned senior counsel for the plaintiff that showing lady with two cans red and black and looking confused and hapless as to how use these two cans simultaneously, is an innuendo whereby the plaintiff's products are undermined. According to me, the matter is to be viewed in the following perspective. First, the plaintiff's (i.e. competitors) products are shown in the form of two cans with confused lady. Then emerges the product of the defendant which is projected to be better. Is it disparaging the plaintiff's product? No. It is only comparing two products. 24. If the defendant highlights its better feature while comparing its product with that the plaintiff in an advertisement given in newspaper. No possible objection can be raised thereto. This is precisely what is done in visual form. Without dubbing the product of the plaintiff as poor in quality or con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant's product over the plaintiff's product is highlighted. 27. The court, while deciding such a dispute would take into account the perception of average individual who is reasonably well informed and observant. So long as the product of the adversary/competitor is not denigrated, it is left to the consumer to choose. In the instant case, the defendant has tried to take mileage from the unique feature of its product and to demonstrate that its product shall suffice as against two products of the plaintiff. Ultimately, the consumer may still like to buy the plaintiff's products thinking that solution/spray for killing one particular insect may be more effective than the product of the defendant meant for killing two insects. He may also think that it is not necessary that there may be mosquitoes and cockroaches at same place and same time. The choice is ultimately of the consumer. 28. In De Beers Abrasive Products Ltd. and Ors. v. International General Electric Co. of New York Ltd. and Anr. 1975 (2) ALL ER 599, (which is quoted with approval by the Calcutta High Court as well as this court ), the court had given the example of disparagement in the following manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the defendants' circular when attentively read comes to no more than a statement that the defendants' white zinc is equal to, and, indeed, somewhat better, than the plaintiffs'. Such a statement, even if untrue and the cause of loss to the plaintiffs, is not a cause of action. Moreover, an allegation that the statement was made maliciously is not enough to convert what is prima facie a lawful into a prima facie unlawful statement. It is not unlawful to say that one's own goods are better than other people's; and Allen v. Flood (1) shows that malice in such a case is immaterial. 32. Present case is more akin to the situations contemplated in the observations contained in the aforesaid judgments. 33. In Reckitt Colman of India v. M.P. Ramachandran and Anr.(supra) the plaintiff was a manufacturer of whitener sold under the brand name Robin Blue. The defendants were also manufacturing a whitener and selling their product under the brand name Ujala. The advertisement of the defendants depicted that the colour blue (which was of plaintiff's product) was uneconomical and the average blue was the most expensive to whiten the clothes. Then it had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich dripped. 36. Likewise, in the case of Pepsi Co.(supra), the Division Bench found that the plaintiff's product PEPSI was described as `Bachhon Wali Drink' and was mocked at in the commercial with the message `that the kids who want to grow up should drink Thums Up . It was disparaging because the following feature in flier: The commercial shows that the lead actor asks a kid which is his favorite drink. He mutters the word PEPSI , which can be seen from his lip movement though the same is muted. The lead actor thereafter asks the boy to taste two drinks in two different bottles covered with lid and the question asked by the lead actor is that Bacchon Ko Konsi pasand aayegi ? After taste the boy points out to one drink and says that that drink would be liked by the children because it is sweet. In his words he says, Woh meethi hain, Bacchon ko meethi cheese pasand hai . He discredited the drink one which according to his has a sweet taste. He prefers the other drink which according to him tastes strong and that grown up people would prefer the same. At that point, the lead actor lifts the lid from both the bottles and the one which is said to be strong taste reveal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1054 Oct-05 1130 Nov-05 1278 Dec-05 1337 Grand total 938 41. It cannot be imagined that the plaintiff did not come to know of it and the statement in the plaint about acquiring knowledge only in September, 2005 is obviously inaccurate in its pitch confronted with these facts, figures and document the only oral Explanation sought to be given was that in February, 2005 the advertisement was different as when the two cans were shown in earlier commercial. AVO was Do can kyon and, Therefore, action was not taken but the advertisement is offending as showing Do tarfa hamla' and, Therefore, action can be taken. There are two responses. First, it is hardly a distinguishing feature in so far as grievance of the plaintiff is concerned. Even in the advertisement then shown, the lady is looking at the two cans in red and black colour and is in confused and hapless state. This is precisely the grievance today. Then it could be the grievance even at that time as well but the plaintiff eschewed that advertisement and did not take any action almost for one year. Secondly, this argument admits that the plaintiff had knowledge about the defendant's commercial even in February, 2005. E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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