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TMI Blog2010 (8) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... which is sold in sachets priced at Re. 1 each. In order to appreciate the allegations made by the plaintiff, it may be useful to extract the story board of the impugned advertisement: 3. It is in the background of this impugned advertisement that the plaintiff has put forth its case both, in the pleadings and in the submissions made before me. It is averred that the plaintiff, is a leader in manufacturing and selling fast moving consumer goods (FMCG), which includes personal care products, such as skin creams, soaps, hair shampoos and other toiletries. With effect from 01.05.2010, the plaintiff had launched a campaign which attempted to highlight the fact that, henceforth in terms of quantity it would offer 20% extra shampoo in sachets priced at Re. 1 or 0.50 paise. In other words, the plaintiff purported to offer to the consumers, evidently 20% extra shampoo at the same price. The defendant, it is averred, only to denigrate the plaintiff's product has, maliciously released the impugned advertisement on 06.05.2010, which seeks to convey to the public at large, that all such shampoos, which includes the plaintiff's shampoo, which are sold in sachets of Re. 1, are less efficacious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for the disposal of the captioned application) the counsel for parties submitted as follows: 6. Mr Lall, who appears for the plaintiff, apart from reiterating the submissions made in the pleadings filed before me, relied upon a Physiochemical Analysis conducted by the plaintiff's Research And Development (R & D) Department to demonstrate that, even when plaintiff was offering lesser quantity of shampoo in its sachets sold prior to 01.05.2010 (at which point in time they launched their extra 20% sachets) the plaintiff's shampoo 'Clinic Plus' was superior to that of the defendant's product. For this purpose, the learned counsel compared various parameters of its shampoo such as the PH Factor, Viscosity, Active Detergent (AD), and the ingredients contained therein, with those of the defendant to drive home his point. This apart, the other reason why my attention was drawn to the R & D report was to support the plaintiff's case, that the assertion, in the impugned advertisement, to effect that, greater quantity of the shampoo used, the better would be the final result; (as in it resulted in softening of hair), was both misleading, and false. 6.1 Mr Lall also adverted to the certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Insofar as picture in frame No.9 is concerned, it is contended that there is no reference to any other product. The statement made alongside the picture in frame no.10 it is asserted : is an attribute of the defendant's product achieved on account of an additive known as "active double conditioner". v) It was also contended that notwithstanding the absence of specific denial in the written statement that the plaintiff's Re. 1 sachet's contained greater quantity of shampoo - the fact remains that prior to 20% extra campaign of the plaintiff (i.e., 1.5.2010) the plaintiff's sachet's contained 6.5 ml of shampoo whereas the defendant's sachet's Re. 1 contained 7.5 ml shampoo. After 1.5.2010 even though plaintiff's Re. 1 sachet's purportedly contains 7.8 ml of shampoo it was not 20% more than the quantity of shampoo which the defendant offered in its Re 1 sachet. Presently, the defendant offered a fill of 7.5 ml. the difference in the quantities offered by the plaintiff and defendant was only 0.30 ml. Additional twenty percent (20%) would result in the increase in quantity by 1.5 ml, and therefore the plaintiff ought to have been offering 9 ml fill as against 7.8 ml f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement ought to have been made maliciously, that is, without just cause or excuse; and (iii) lastly, the plaintiff, as a result of the above, ought to have suffered a special damage thereby. [See Royal Baking Powder Company vs Wright Crossley & Co. (1901) 18 R.P.C. 95 cited with approval in Dabur India Ltd. Vs M/s Colortek Meghalaya Pvt .Ltd. 2009 (42) PTC 88]. The defendant in an action for disparagement is always entitled to set up a defence whereby, he can seek to repel an action by justifying the impugned statement based on the following: that the law does not interdict a trader from saying that his goods are the very vest. To achieve this end a trader is entitled in law to compare his goods with his competitors'. 10.1 This perhaps is also the genesis of comparative business. The only caveat to the above defence is, of course, that in the process of comparison, the defendant cannot denigrate the goods of his competitors. Though, no fault can be found, if a trader were to only suggest that his goods are better than his rival in trade, in one or, the other respect. But the question is how do you differentiate between a harmless comparative statement, and a statement which tends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 them in the following terms: (1) The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product? In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. (3) The manner of advertising - is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible. 18. On balance, and by way of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isement, would reveal clearly that the defendant was conscious of the fact that the advertisement was directed towards the plaintiff. This argument was sought to be supported by Mr Lall, by reminding the Court that the defendant expecting the institution of the instant action in Court, filed a caveat on 06.05.2010. In my opinion, such an argument is untenable. There is nothing in the story board which would suggest that it is specifically or generally directed towards the plaintiff. Even if one were to assume that it was so, in my view, the statement made by virtue of the impugned advertisement does not prima facie constitute disparagement. The reason for this is that there is no dispute about the fact that prior to the plaintiff launching its 20% extra campaign (that is, prior to 01.05.2010) decidedly the plaintiff's sachets carried a fill of 6.5 ml, which was, less than that of the defendant. The defendant's sachets of ₹ 1, prior to 01.05.2010, carried a fill of 7.5 ml. It was perhaps because of this, and other factors which may have prompted the plaintiff to offer 20% extra quantity of shampoo to its consumers. It is claimed by the plaintiff that w.e.f. 01.05.2010 its sach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions made before me, stress upon sophistry of the message, which, according to the plaintiff, is sought to be conveyed; by itself, is a factor which would dissuade me from injuncting the impugned advertisement at this stage. The advertisement is played out for approximately 20 seconds, the fine distinctions which Mr Lall has sought to draw during the course of arguments cannot be visually grasped by a viewer. The last three frames may still well fall within the grey areas alluded to by the Division bench in the case of Dabur India (supra). 12.3 As regards the judgment in the case of Dabur India Ltd vs Colgate Palmolive Ltd was concerned, it turned on facts. One of the crucial admissions made by the defendants was that the impugned advertisement was directed against plaintiff's product "Lal Dant Manjan Powder". There is no such admission in the present case. 13. For the reasons given above, in my view, no interference is called for at this stage by the court. 14. Before I conclude, I may only refer to one aspect of the matter. The counsels before me adverted to the provisions of rule 6 of the Packaging Commodity Rules, 1977 framed under Section 34 of the Standard of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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