TaxTMI 
TaxTMI 
2009 (12) TMI 1012
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....sh) --------------- Do-do partiyan ho rahi hain. Two parties are going on... Ek bachchon ki. Ek Machcharon ki. One for the kids and the one (other) for mosquitoes... Ab kehne ko mosquito repellant Just to say there are mosquito creams hai. Par lagao to museebat. repellant creams. But if you apply Na lagao to museebat. Lagao toh them, it's a problem and if you rashes, allergy ka darr. Upar se don't, even then it is a problem. If chipchipi. you apply you get rashes, there is a risk of allergy and on top of that its sticky... Aur na lagao....to machharon ki ash. And if you don't then it's a fun Toh Karen kya? time for mosquitoes. So what do we Wohi toh bataane aayi hoon do? Goodknight Naturals That is what I have come here to tell you... Tulsi Tulsi... Lavender Lavender... Aur Milk proteins se bani And Milk protein... Goodknight Naturals Goodknight Naturals Mosquito repellent cream Mosquito repellent cream... Machcharon ki haar, Mosquitoes lose... Skin se pyaar ... love with your skin -------------- 3. The plaintiff which is as per its own averments in the plaint is the manufacturer of the pharmaceutical products, toiletries, ayurvedic and other medicicinal preparat....
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....its reply to the captioned application has broadly averred that both the suit and interlocutory application ought to be dismissed on the ground of: (i) lack of cause of action; (ii) the advertisement only adverts to a statement of fact; (iii) there is neither any intent nor is there any disparagement in point of fact; (iv) after extensive research it has manufactured a mosquito repellant cream - sold under the brand name .Good Night Naturals. which mitigates chances of getting rashes or allergy; (v) there is no comparison made in the impugned advertisement with the plaintiff's product or for that matter any reference to the plaintiff's product; (vi) lastly, the fact that advertisement seeks to bring to fore the advantages of a mosquito repellant cream comprising of natural additives as against the mosquito repellant cream which does not have such additives cannot be termed as one disparaging the product of the plaintiff. 7. Mr. Dushyant Dave, learned senior Advocate buttressed the grounds of opposition taken in the reply with the following: (i) the plaint does not disclose a prima facie case of disparagement;....
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....(16) PTC 393 (Del); Reckitt & Colman of India ltd v. M.P. Ramachandran and Anr. 1999 (19) PTC 741 (Cal) Reasons 8. The law on the subject of disparagement atleast in this Court has obtained certain defined contours. Therefore, what is to be essentially seen in the light of principles enunciated in these judgments is whether the defendant in issuing the impugned advertisement has, at least prima facie, committed a tort of slander of plaintiff's goods. Broadly, the principles being: (i) puffery is permissible eventhough it results in extolling the virtues of ones own goods- which may not be quite in accord with reality. A trader cannot most certainly denigrate a rival trader's goods. See Reckitt & Colman of India ltd v. M.P. Ramachandran and Anr. 1999 (19) PTC 741 (Cal) (ii) comparative advertisement is permissible as long as it does not attain negative overtones; [see Godrej Sara Lee Ltd v. Reckitt Benckiser (I) Ltd. 128 (2006) DLT 81 and Dabur India Ltd v. Wipro Ltd 129 (2006) DLT 265] (iii) generic disparagement being tortious, it makes no difference whether it is 'overt' or 'covert' for it to be held as tortious. In that se....
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....tion enures in the favour of the public, i.e., consumer. It is this underlying philosophy, which motivates the courts to zealously protect commercial speech as a fundamental right under Article 19(1)(a) of the Constitution. (See Kerly's Law of Trade Marks and Trade Names 14th Edition pages 613-615) 8.4 Recent trends have shown that the articles even in science journals commenting on the efficacy of goods manufactured by large multinational companies, are sought to be shut out through medium of courts. While an aggrieved party's right to seek recourse to law cannot be questioned, interest of the consumers to know must be guarded - even if the dissemination of information is by way of an advertisement which exaggerates the virtues of the traders goods. Public debate is good. The only caution that the defendant-trader has to bear in mind is that his advertisement does fall within the four corners of what constitutes in law malicious falsehood. Consequently, the courts are slow to grant interim relief if the defendant has set up an arguable case that the impugned statement is true. The courts are not ordinarily a forum which should determine as to whether the plaintiff's....
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....s.. The point of difference in the two products according to the defendant is that since its product is milk protein based, the likelihood of rashes and allergy is greatly diminished- a virtue it seeks to extol. The defendant cannot obviously disparage mosquito repellant creams generally because what is produced by it is also a mosquito repellant cream- the difference is, according to the defendant, in the additives. This is quite clear from the following utterances of the model where she says that .if you apply them (reference is to mosquito repellant creams) it's a problem and if you don't even then it is problem.. (emphasis is mine). Thus, there is an attempt on the part of the defendant to persuade the consumers to buy its mosquito repellant cream with its proclaimed additives to avoid risk of allergies and rashes. 9.1 The statement made by the defendant may be an idle boast or puffery but it certainly does not constitute disparagement. The defendant cannot generally be seen to disparage mosquito repellant creams because it manufactures the same as well. There is another way of looking at it. Suppose the defendant were to say that Good Night Naturals is a milk protei....