TaxTMI 
TaxTMI 
2013 (4) TMI 884
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.... the impugned advertisement. CS(OS) No. 246/2013 with respect to advertisement on television came up first before this Court on 8th February, 2013 when summons/notice thereof was issued. The plaintiff soon thereafter instituted CS(OS) No. 319/2013 with respect to advertisements in the Print Media and summons/notice thereof was also issued on 18th February, 2013. The counsels for the parties were heard for the purpose of interim relief from 25th February, 2013 till 18th March, 2013 when orders on these applications were reserved. 2. It is the case of the plaintiff:- (i). that the plaintiff and the defendant are competitors in the cooking oil segment; (ii). that the plaintiff's cooking oil sold under the Trademark SAFFOLA is a blended oil sold in four variants with composition (a) of SAFFOLA GOLD of 80% Refined Rice Bran Oil (RBO) and 20% of Refined Safflower Seed Oil; (b) of SAFFOLA TASTY of 60% Refined Corn Oil and 40% of Refined RBO; (c) of SAFFOLA ACTIVE of 80% of Refined RBO and 20% of Refined Soybean Oil; and, (d) of NEW SAFFOLA of 60% of Refined Safflower Seed Oil (Imported, High Oleic) and 40% of Refined RBO; (iii). that the defendants produc....
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....nt clearly compare the product of the defendant with the product of the plaintiff in as much as though the Trademark of the plaintiff is not shown or referred but the container of the product with which comparison is made is the same as the distinctive container/carton of the product of the plaintiff, leaving no manner of doubt in the minds of the viewers that the comparison of the product of the defendant is with the product of the plaintiff; (c). that the defendant is claiming its product to be better for the reason of having the highest Oryzanol content-however under the Food Act and the Notifications thereunder, RBO is mandatorily required to have Oryzanol content of not less than one percent-since the product of the plaintiff is a blend of RBO and other oil, the same is bound to have less Oryzanol than the product of the defendant composition whereof is only of RBO; it is argued that the defendant thus, by providing 1000 mg Oryzanol in every 100 gm of its oils is just complying with statutory requirements and without disclosing so is deriving a mileage; (d). that the claim of the defendant of the health benefit of Oryzanol projected in its advertisements havi....
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....ng the product of another tradesman, the latter is entitled to the relief of prohibitory injunction; * Pepsi Co. Inc. Vs. Hindustan Coca Cola Ltd. 2003 (27) PTC 305 (Del)(DB) - laying down that though comparative advertising is permitted but only so long as it does not discredit or denigrate the Trademark or trade name or disparages the product of the competitor; * Dabur India Ltd. Vs. Vs. Colortek Meghalaya Pvt. Ltd. (2010) 44 PTC 254 Del (DB) holding that in view of the law laid down by the Supreme Court in Tata Press Ltd. Vs. MTNL (1995) 5 SCC 139 false, misleading, unfair or deceptive advertising is not protected commercial speech and the earlier judgments holding that a tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue and to say that his goods are better than his competitors', even though such statement is untrue are no longer good law. It was further held that while hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if does so, the advertiser must have some reasonable factual basis for the assertion made and it is not possible for anybody ....
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....nd downloads from their websites are handed over to show that they also are claiming RBO to be the healthiest and it is argued that the plaintiff has dragged only the defendant and not the said three other manufacturers and marketers of RBO; (xi). it is argued that the plaintiff has approached this Court with a specific case of the advertisement disparaging the product of the plaintiff and cannot now be permitted to base its case on generic disparagement as has been sought to be argued; (xii). it is contended that the container of the other product shown in the television advertisement of the defendant is not distinctive of the plaintiff and in this regard photographs of other products with similar containers are shown; (xiii). attention is invited to Hindustan Unilever Limited Vs. Cavincare Private Limited: 2010(44) PTC 270 (Del) laying down that every disparagement is not actionable and for disparagement to be actionable it should such as to bring it within the tort of malicious falsehood and the plaintiff as a result of the same should be shown to have suffered a special damage; (xiv). reliance is placed on Dabur India Ltd. Vs. Wipro Limited 2....
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....nal Standardization and is not concerned with health claims. It is argued that the claim of the defendant in the advertisements of the pure RBO being better than blended oil has been falsified from the defendant's own documents. In response to the argument of concealment it is stated that the present suit was filed within one day of approaching the Advertising Council of India and the plaintiff cannot be said to have elected its remedy or by approaching the Advertising Council of India having given up the right of approaching this Court. 6. I have on the anvil of settled principles, carefully viewed the electronic and the print media advertisements to gauge whether any prima facie case of disparagement of the product of the plaintiff is made out. 7. The electronic/television advertisement proclaims:- (A). RBO as the healthiest oil in the world; (B). RBO is healthier than other cooking oils shown in the advertisement; (C). 100% RBO is better than other cooking oils though also having RBO but which are not 100% RBO; (D). 100% RBO is good for heart, cholesterol, immunity, skin and hormones; (E). the entire world is using 100% RBO.....
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....;, 'the best tailor in this town' and the 'best tailor in this street' do not commit an actionable offence. Where however the situation is not that the trader is puffing his own goods but turns to denigrate the goods of his rival.. then the situation is not so clear-cut. The statement 'my goods are better than X's' is only a more dramatic presentation of what is implicit in the statement 'my goods are the best in the world' and would not be actionable. However, the statement 'my goods are better than X's because X's are absolute rubbish' would be actionable. 12. The Division Bench of this Court in Pepsi Co. Inc. supra held that a tradesman by comparison cannot slander or defame the goods of the competitor nor call them bad or inferior. Thus comparative advertising is permissible as long as while comparing own with rival/competitors product, the latter's product is not derogated, discredited, disgraced, though while comparing some amount of 'showing down' is implicit; however the same should be within the confines of De Beers Abrasive supra and should not be of a slighting or 'rubbishing' nature. 13. The s....
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....ng as it is accurately done (it may be mentioned that the plaintiff has not controverted the Oryzanol content and the price of the products as depicted in the impugned print advertisement). It was further yet held that showing the Horlicks boy to be stronger, taller and sharper in comparison to the Complan boy was at best an instance of puffing. It is worth highlighting that it has also not been the plea or argument of the plaintiff in the present case that the claims in the advertisement of the defendant, of the requirement by the human body of 300 mg of Oryzanol daily or of the average daily consumption in India of edible oil being 33 grams, are false. 15. The Division Bench in Dabur-Colortek after laying the following propositions relating to comparative advertising:- Finally, we may mention that Reckitt & Colman of India Ltd. v. M.P. Ramchandran and Anr., 1999 (19) PTC 741, was referred to for the following propositions relating to comparative advertising: (a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (b) He can also say that his goods are better than his competitors', even thou....
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.... the advertisement and the message sought to be conveyed thereby. 18. The intent, storyline and the message sought to be conveyed by both the electronic/television as well as the print media advertisements is that RBO is the healthiest oil in the world, healthier than other cooking oils and better than cooking oils which are a blend of RBO and some other oil because 100% RBO has a higher quantity of Oryzanol which is good for heart, cholesterol immunity, skin and hormones. The plaintiff's own cooking oil also has RBO as a significant component and the plaintiff also in fact in its advertisements and website has been claiming similar if not the same benefits of Oryzanol. No challenge even otherwise, neither in the pleadings nor in the arguments is made to the benefits of Oryzanol or as aforesaid to the daily requirement of the human body of Oryzanol or to the Oryzanol content in the products of the plaintiff and of the defendant. In the electronic/television advertisement the product of the plaintiff is not even named and in the print media advertisement the product of the plaintiff though is named but only to represent its Oryzanol content and price and which is not stated t....
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....t can be regulated and prohibited by the State and would be hit by Article 19(2) of the Constitution. Perhaps relying on the latter of the aforesaid observations the Division Bench in Dabur-Colortek held Tata Press to be overruling the settled position earlier prevalent that a tradesman is entitled to declare his goods to be the best in the world even though the declaration is untrue. It is also worth mentioning that though Tata Press is a judgment of the year 1995 but none of the subsequent judgments on disparaging are found (at least by me) to have interpreted it as has been interpreted by the Division Bench in Dabur - Colortek i.e. of overruling the settled principle of law relating to comparative advertising. However having said so, this Bench is bound by what the Division Bench has said in Dabur-Colortek. 21. However even applying Dabur - Colortek, I am not able to find an actionable case in favour of the plaintiff. This is for the reason that the intent, manner and storyline and message of the advertisement of the defendant is of its product containing a higher quantity of Oryzanol (and which follows from being 100% RBO) sufficient to meet the daily requirement of human bo....