TaxTMI 
TaxTMI 
2004 (9) TMI 603
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....ant Manjan by rubbing it on the purchaser's spectacles which leave marks which are termed by Sunil Shetty as being akin to sandpapering. He also endorses the defendant Colgate's tooth powder as being 16 times less abrasive and non damaging to the spectacles. He is heard telling the purchaser that it is easy to change spectacles but not the teeth. 2. The plaintiff's claim as per the pleas of Shri Arun Jaitley, Senior Advocate is that :- (a) The impugned advertisement runs down all Lal Dant Manjan tooth powders as severely detrimental to dental health and in particular damaging the tooth enamel. (b) The plaintiff has the lion's share 80% of the Ayurvedic tooth powder trade and is directly hit by this advertisement as the principal producer, by the denigration of the generic product Lal Dant Manjan. It has a turnover of about Rs. 150 cores for the Lal Dant Manjan tooth powder and its advertising budget for the said product is about Rs. 4 crores. In any event the defendants' advertisement affect the plaintiff the most and hence it is entitled to ventilate its grievances. While the advertisement does not directly refer to Dabur Dant Manjan, i.e. ....
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....ng of that trade mark if such advertising-- (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) .... (c) is against the reputation of the trade mark. Such violation of Section 28(a) & (c) tantamounts to infringement of a registered trade mark. (f) Even Colgate Palmolive, the defendant had secured an interim injunction in respect of an advertisement which was detrimental to the reputation of their product in the MRTP Commission and such injunction was upheld by the Supreme Court by a judgment reported as (g) The DB judgment in appeal against the order passed in IA No. 996/96 in Suit No. 292/96, titled Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd., which had prima facie held that even the right to freedom of speech which included commercial work also as per the law laid down by the Supreme Court judgment in Tata Press also could be restricted reasonably under Article 19(2). 3. Mr. Rohtagi, the learned senior counsel for the defendant has contended that: (a) The advertisement does not identify and refer to the plaintiff's product (b) It is open ....
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....omplain. For this purposes, he has further relied upon the meaning of the word 'disparage' from Black's Law Dictionary which reads as follows:- "disparage (di-spar-ij), vb. L. Hist. To connect unequally (e.g., to marry below one's status). 2. To dishonor (something or someone) by comparison. 3. To unjustly discredit or detract from the reputation of (another's property, product or business). Disparagement (di-spar-ij-ment), n. A false and injurious statement that discredits or detracts from the reputation of another's property, product, or business." (l) He has highlighted the fact that the statement made by him was not false. He has also relied on the following observation from Salmond on torts (20^th Edition) "The tort requires the making of a false statement, with "malice," to some person other than the plaintiff, as a result of which the plaintiff suffers damage." ..... "A statement by one trader that his goods are superior to those of a rival (mere "puffing"), even if it is false and known to be so and causes damage to the other is not actionable, for courts of law cannot be converted into advertisin....
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....t the article was inserted with any special reference to the plaintiff. It does not appear that the defendant knew of his existence. But further, I am of opinion that this is no libel, for that it is protected by the privilege of fair discussion on a matter of public interest, it is not appearing that it was malicious." (o) Reliance has also been placed on the English judgment in Bastobell Paints Limited v. BIGG, where it has been held as follows:- "Held, refusing the injunction, (1) in the interests of freedom of speech, the courts will not restrain the publication of a defamatory statement, whether a trade libel or a personal one, where the defendant says he is going to justify it at the trial of the action, except in cases where the statement is obviously untruthful and libellous." (p) He has also relied on the judgment of a learned Single Judge in Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd., 1996 PTC 393, to contend that once identity of the plaintiff's goods were not to be traced, then no complaint could be made by the plaintiff and an injunction could not be granted. 4. In my view the following facts are not in dispute. ....
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....of this nature one has to look at whether the advertisement merely puffed the product of the advertisement 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 is 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 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 he simple reason that while saying all are bad it was being said all and everyone is made and anyone titting the description of everyone is affected thereby." The judgment of....
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....is commercial will leave an impression on the mind of the viewers that product of the appellant i.e. "PEPSI" is simply a sweet thing nor meant for grown up or growing children. If they choose PEPSI, it would be a wrong choice. The message is that kids who want to grow should not drink "PEPSI". They should grow up with "Thums UP". The manner in which this message is conveyed does show disparagement of the appellant's product." Reliance was also placed upon paragraph 16 of Wander Ltd. and Anr. v. Antox India P. Ltd., reported as 1990, SUPP. SCC 727 which reads as under:- "16. An infringement action is available where there is violation of specific product right acquired under and recognised by the statute. In a passing-off action, however, the plaintiff's right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a par....
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....plaintiff with 12% market share to complain and the present plaintiff with 80% share of the market of the decried generic product is thus entitle to impugn advertisements which disparage the generic product. 12. In my view the law relating to generic disparagement of a specified commodity and the entitlement of one of such unidentified manufacture of such decried product is settled by Dabur's judgment following the Reckitt Coleman judgment. The Dabur's judgment (supra) indeed in paragraph 9 refers specifically to and prescribes generic disparagement. 13. While Mr. Rohtagi is right in submitting that the generic disparagement was not to be found in the judgment of the learned Single Judge in Reckitt & Coleman's case (supra) which was followed in Dabur's case, yet I am of the view that the position of law about generic disparagement in Dabur's case was not only justified but also warranted. Even if the ratio of the two learned Single Judge's judgments of this Court is considered to be only in respect of an identified product, in principle there is no reason why the manufacturer of a disparaged product, which though not identified by name, cannot complain....
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.... a rival product without specifically identifying or pin pointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genere of a product within which a complaining plaintiff falls and raise a defense that the plaintiff has not been specifically identified. In this context the plaintiff has rightly rejected the offer of the defendant to drop the container from its advertisement so as to avoid the averred identification of the plaintiff's product. I must also deal with a English judgment of Willes J relied upon the counsel for the defendant (for which no citation is indicated), the entire reasoning of which reads as under:- "Willes, J. - The action cannot be maintained. Assuming the article to be libellous, it is not a libel on the plaintiff; it only reflects on a class of persons dealing in such objects; and it is immaterial in this view whether they are genuine or not. If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual, which [350] there is not there. There is nothi....