2004 (5) TMI 599 - HC - Companies Law

Court Blocks TV Ad for Disparaging Dabur Chayawanprash, Preserving Market Share Amid Generic Term Debate.

The HC granted a temporary injunction under Order XXXIX Rules 1 & 2 CPC, restraining the defendant from broadcasting the impugned TV commercial, which was ... Disparagement of goods - trade puffing - negative comparative advertising - insinuating advertisement - temporary injunction under Order XXXIX Rules 1 & 2 CPC - use of a generic name and absence of exclusivityDisparagement of goods - trade puffing - negative comparative advertising - insinuating advertisement - Whether the impugned television commercial disparaged the plaintiff's Chayawanprash and warranted a temporary injunction. - HELD THAT: - The court applied the established principles that a trader may lawfully puff his own goods and claim superiority but may not assert that a competitor's goods are bad so as to defame or disparage them. The impugned commercial, by declaring in effect that Chayawanprash should be avoided in summers and that the defendant's Amritprash should be taken instead, went beyond permissible puffing and constituted an attempt to exclude or forbid use of Chayawanprash during a season. That message necessarily covered the plaintiff's product, since Dabur's Chayawanprash is within the generic class targeted, and thus amounted to an insinuation and disparagement of the plaintiff's product even though no express reference to the plaintiff's brand was made. The defendant's reliance on the generic character of the word 'Chayawanprash' and on the contention that the advertisement was mere trade puffing was rejected because the advertisement conveyed that the whole class of Chayawanprash (including the plaintiff's product) was not to be consumed in summer and promoted the defendant's product as the substitute. The court concluded that such negative comparative advertising would likely prejudice the plaintiff's substantial market presence and therefore restraint was justified pending trial. [Paras 6, 7, 9, 11]Application for interim injunction allowed; defendant restrained from telecasting the impugned television commercial during the pendency of the suit.Final Conclusion: The court held that the advertisement amounted to disparagement of the plaintiff's product and granted a temporary injunction restraining telecast of the impugned TV commercial during the pendency of the suit. Issues involved: Application for temporary injunction u/s Order XXXIX Rules 1 & 2 of the Code of Civil Procedure regarding disparaging advertisement of a product.Summary:1. The plaintiff, a leading manufacturer of pharmaceutical products, markets Dabur Chayawanprash, claiming a 63% market share. The defendant introduced Himani Sona-Chandi Amritprash, airing a TV commercial disparaging Dabur Chayawanprash. 2. Plaintiff alleged the defendant's advertisement insinuated that Chayawanprash should not be consumed in summers, promoting Amritprash as a substitute, negatively impacting plaintiff's business. Defendant argued it was a general statement and 'Chayawanprash' is a generic term.3. Legal principles from previous cases were cited, emphasizing a manufacturer's right to declare goods as best but not to defame competitors' products. The court analyzed the advertisement's impact on plaintiff's market share and the insinuation against Chayawanprash.4. The court found the defendant's advertisement disparaging towards Chayawanprash, including Dabur Chayawanprash, affecting the plaintiff's market presence. The defendant's attempt to exclude Chayawanprash during summers for promoting Amritprash was deemed disparaging.5. The defendant's argument that 'Chayawanprash' is a generic term and the advertisement did not directly reference plaintiff's product was rejected. The court held that the advertisement's message indirectly disparaged the plaintiff's product.6. The court granted a temporary injunction, restraining the defendant from telecasting the impugned TV commercial during the lawsuit, acknowledging the disparaging nature of the advertisement towards the plaintiff's product. The application for injunction was allowed.