TaxTMI 
TaxTMI 
2012 (7) TMI 1046
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....have also moved for ad-interim orders. The plaintiff is a public limited company incorporated under the provisions of the Companies Act 1966 and carries on business of manufacturing and selling of consumer products including mosquito repellents. The plaintiffs claim to be a market leaders in the field of mosquito repellent in India. The defendant No.2 is also a public limited company incorporated under the Companies Act and carries on business of selling mosquito repellents and is competitor of the plaintiffs in the field of mosquito repellents. The plaintiffs are manufacturing mosquito repellents in various types such as mats, refills, coils and liquid vaporizers under the trademark "Good Knight". According to the plaintiffs, the mosquito repellents with a trademark Goodnight are sold since 1984. It is the case of the plaintiffs that the mosquito repellents of the plaintiffs, in particular, Good Knight liquid vaporizer mosquito repellent bears distinctive label which is predominantly red in colour with a thin silver lining, being an essential predominant feature of its packaging/ trade dress. It is the case of the plaintiffs that the plaintiffs came to know recently that the defen....
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....to disparage the product of the plaintiffs. The Learned Counsel relies on the judgment of the Delhi High Court in the case of Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd., MIPR 2010 (3) 0314 Del.; Reckitt Benckiser (India) Ltd. v. Hindustan Lever Limited, 2008 (38) PTC 139; Dabur India Limited v. Colgate Palmolive India Ltd., AIR 2005 Del. 102 and of Madras High Court in the case of Annamalayar Agencies v. VVS & Sons Pvt.Ltd. & Ors., 2008 (38) PTC 37 (Mad.) and of Calcutta High Court in the case of Reckitt & Colman of India Ltd. v. M.P. Ramchandran, 1999 PTC (19) 741. 4. As against this, Shri Chagla, learned senior counsel appearing for the defendants submits that apprehension of the plaintiffs that the advertisements in question tries to disparage the product of the plaintiffs is totally ill-founded. It is submitted that the part of the advertisement, which according to the plaintiffs disparage their product, is seen hardly for a second. He submits that it is improbable that any ordinary person would identify the said bottle shown in the beginning of the advertisement to be that of the plaintiffs' product. Learned Counsel submits that the advertisement i....
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....994) 1 SCC 1 and judgment of the Division Bench of this Court in Appeal No.322/1991 (Maganlal Kuberdas Kapadia v. Themis Chemicals Ltd.) decided on 22nd April 1991. 5. I will first deal with the contention of the defendant that the plaintiff is not entitled to equitable relief on the ground of suppression of material facts. No doubt, the law on the point is very clear that if a party seeking equitable relief approaches this Court by suppressing some vital material which would have bearing on the issue as to whether relief could be granted in its favour or not, then such party would not be entitled to any relief from this Court. The principles that who seeks equity must do equity and a party coming to the Court must come with clean hands are well settled. In that view of the matter, though various judgments are cited in support of the said proposition, I do not find it necessary to go into that aspect of the matter. The only question is as to whether the alleged suppression is first of all suppression or not and even if it be, whether such suppression is of such a nature which would have bearing upon the question of grant of relief in favour of the plaintiff or not. The defendant....
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....es 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 competent to grant an order of injunction restraining repetition of such defamation. 8. For appreciating the rival submissions it will also be necessary to reproduce the story board of three advertisements which is as under: Story Board of Advertisement No.1. Video Audio Film opens on a manholdinga racket. Standing in a room. The man is seen switching on his liquid vaporizer machine. Â While the man sits to rest, mosquitoes start disturbing him so he shooing themwithhis racket. VO:What you are upto,getting ready to play inWimbledon?... The mosquitoes continue to trouble him so he stands up on his chair and tries killing them by waving his racket furiously. VO:... Listen Sir, MissPadukonewill be reallyimpressed. He gets really fed up of the mosquitoes, and continues shooing them with racket. VO:Oh master! What areyou doing, shadowboxing?... ....
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....8;œAre you performing afolkdance? Orwarming up your hands?†The man, while trying tokill the mosquitoes, sitsdown to kill mosquitoesnearthe boy playing. MVO“Are you gettingready to be acheerleader?†While the man continues totry killing mosquitoes nearthe boy, he accidentallytopples the structure made by the boy while the MVO says... MVO“Or lifting your handsandplaying hifi?Or is it a new method 9. In the case of Dabur India Limited v. Colgate Palmolive India Ltd. (cited supra), the sum and substance of TV advertisement complained of was that a Cinestar was seen stopping the purchasers of Lal Dant Manjan powder. He further informs them of the ill effects of such Lal Dant Manjan by rubbing it on the purchaser's spectacles which leaves marks which are termed by Cinestar as being akin to sandpapering. He also endorses the Colgate's (defendant therein) tooth power 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. In the said case al....
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....e a reference to the DETTOL Original soap of the plaintiff. Ext. PW1/11 are some photographs extracted from the video clip of the said advertisement. Photograph Photograph They clearly indicate the orange colour of the soap bar, the contours on the soap, the overall shape of the soap. Ext. PW1/8 is a sample of the DETTOL soap in the green coloured packaging. The new shape of the DETTOL Original toilet soap with the curved edges and the curvature in the middle is clearly displayed on the product packaging, which is further indicative of the importance given to the shape by the plaintiff in its marketing of the product. The packaging (Ext. PW1/8) also establishes the fact that although white is also used, green is the pre-dominant colour. Although, the brand name, logo or the sword device does not appear in the orange bar of soap shown in the advertisement (Ext. PW1/2), there can be no misgiving that the bar of soap which has been shown in the said advertisement is of a colour similar to that of the plaintiff's DETTOL soap. The contours, curvature as well as the overall shape of the orange bar of soap in the advertisement itself, are virtually the same as....
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....much assistance so far as present case is concerned. 12. The Madras High Court, in Annamalayar Agencies v. VVS & Sons Pvt.Ltd. & Ors. (supra) had an occasion to consider an advertisement wherein the plaintiff's product "Parachute Coconut Oil" was bottled in blue bottle, whereas defendant's product "VVD Gold Coconut Oil" was bottled in a green bottle. The advertisement No.1 impugned in the said case shows two coconuts, one in green colour and another in blue colour and an actress wearing green dress appears on the scene and asks a question "which is natural?", and then she herself picks up a green coconut and says that it is natural. In advertisement No.2, an actress wearing green dress picks up one of the green colour plastic bottles of VVD arranged in a shelf and says this is 100% pure and natural and this is what I want. Then the next shot shows an actress wearing green dress in the foreground and the lady wearing blue saree in the background. The lady wearing blue saree has a blue colour bottle in her left hand and a VVD bottle in her right hand. She looks at the blue bottle which is in her left hand and shakes her head disapprovingly and puts the bottle down. Then sh....
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.... 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 in 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 a 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 the simple reason that while saying all are bad it was being said all and everyone is bad and anyone fitting the description of everyone is affected thereby. ..... ..... ..... In the instant case the object of the advertisement was to convey to the customers of the blue including those of the plaintiff that if you use blue to whiten your washed clothes you will get washed clothes with blue patches. This could not be done. 14. In so far reliance placed by Learned Counsel for the defendant No.2 on the judgment of the Division Bench of the Delhi High Court in the case of Dabur India Ltd. v. Colortek Meghalaya Pvt.Ltd. & Anr (s....
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....at being so, whether the Appellant's product is targeted or not becomes irrelevant. 21. Learned Counsel for the Appellant further submitted that the use of expressions such as an apprehension of getting rashes and allergy or an allegation that other creams cause stickiness amounts to disparagement of the Appellant's product. We cannot agree with the submission of Learned Counsel. There is no suggestion that any other mosquito repellent cream causes rashes or allergy or is sticky. All that it is suggested is that if a mosquito repellent cream is applied on the skin (which could be any mosquito repellent cream) there may be an apprehension of rashes and allergy. Generally speaking, this may be possible depending on upon the quality of the cream, the sensitivity of the skin of the consumer and the frequency of use etc. - we cannot say one way or the other. The commercial does not suggest that any particular mosquito repellent cream or all mosquito repellent creams cause rashes and allergy. In fact, the Respondents are also trying to promote a mosquito repellent cream and it can hardly be conceived that all mosquito repellent creams (which would naturally include the R....
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....commercial. Out of the above, "manner of the commercial", is very important. If the manner is ridiculing or condemning product of the competitor then it amounts to disparaging but if the manner is only to show one's product better or best without derogating other's product then that is not actionable. 18. In this background, we have to consider the present matter. The first advertisement shows a man holding racket standing in the room and is seen switching on the liquid vaporizer machine. It shows that though the machine is put on the mosquitoes continue troubling him and so he starts shooing them with his racket. Thereafter standing on the chair he is shown trying to kill them by waving his racket furiously. Thereafter some oral utterances are made by the famous actor Madhavan and at last defendant's product zooms into the screen and then zooms out and fits itself into a machine and the actor says, "of MAXO. A single drop is sufficient. The action is instant. Besides, it fits any machine." Similarly, there are two other advertisements. Since the entire story line is reproduced hereinabove, I do not find it necessary to repeat again the sum and substance of the ad....
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.... lie. From the storyline and the manner of the advertisements in question, it can clearly be seen that the message that is sought to be given in the advertisements, is that even after the machine with product containing label alike plaintiff's product is put on, it has no effect and the mosquitoes go on troubling which require the person in the room to indulge in acrobatics etc. It is to be noted that the advertisement campaign or visual media has an immediate impact on the viewers and possibly purchaser's mind, particularly, when a well known cinestar is endorsing it. It is further to be noted that the matter has to be looked from the view point of the ordinary person of average intelligence. Though the advertisements in question may show the product having a label alike that of plaintiff's product for a few seconds, the possibility of the same being registered in the mind of an average consumer and linking it with the ineffectiveness of the product cannot be ruled out. 20. In so far as contention of the defendants that there are other similar labels which are having red colour in predominance is concerned, I have examined the labels which are placed on record by th....