TaxTMI 
TaxTMI 
2005 (5) TMI 667
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....rs unless it is visible on the small screen that today has found a place in every household including those in rural India. The fight for a larger market share unleashes economic battles most of which get settled in the market place, but there are some that refuse to die down and eventually end up in the Court. Recourse to legal proceedings is in such cases guided by sound economic considerations for the battle in the market place can turn bloody, considering the fact that the resources of those engaged in the fight are unlimited. 2. The parties to the present suit have locked horns in somewhat familiar circumstances. The fight is over an advertisement campaign meant to promote sale of Mosquito Repellents, which both the parties are manufacturing and marketing. The plaintiff has prayed for an order restraining the defendants from telecasting what is described as GOOD KNIGHT TURBO REFILL commercial, which according to the former disparages its product and results to dilution of its brands. 3. The plaintiffs case, as set out in the plaint, is that it is engaged in manufacturing and marketing a range of household insecticides and mosquito repellents since the year 1992. These pr....
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....e plaintiff completely disparages, denigrates and shows the plaintiff's product in bad light. The commercial is, according to the plaintiff, intended to convey to the viewers the message that the plaintiff's product is outdated and less efficient than the product manufactured by defendant No. 3. This television commercial has appeared in a number of television channels including that of defendants No. 1 and 2. The commercial depicts a lady using the latest household gadgets like a plasma TV, a modern double door refrigerator and a tablet PC. The commercial then shows the lady moving towards the plug point in which the All Out pluggy vapouriser and refill set are plugged. The commercial then depicts the lady walking towards the said apparatus with the background 'baki sab latest macchar bhagane ka tareeka wahi 15 saal purana' [the rest everything is latest but the manner of chasing away mosquitoes is the same 15 years old). The lady in the commercial then unplugs the ALL OUT pluggy with the background 'Apnaiye latest GOOD KNIGHT TURBO REFILL" (about latest GOOD KNIGHT TURBO REFILL). A few seconds later, the background statement is 'iske turbo vapours macchar ....
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.... TURBO REFILL or any other edited version of the same. 8. Aggrieved by the aforementioned order of injunction defendant No. 3 preferred FAO(OS) No. 231/2004, which was heard and disposed of by a Division Bench of this Court by order dated 5th November, 2004. While the Appellate Court did not deal with the rival contentions of the parties it added the following words "which does not disparage the goods of the respondent" at the end of the operative portion of the injunction order. The result, Therefore, was that the order of injunction after the addition made by the Division Bench reads as under: "an ad-interim ex-parte injunction deserves to be granted restraining the respondent No. 3, its Distributors, Officers, Agents, Directors, Servants acting on behalf of respondent No. 3 from airing or getting aired the impugned television commercial "GOOD KNIGHT TURBO REFILL" or any other edited or other version of the said commercial which does not disparage the goods of the respondent." 9. The matter having thus come back to this Court, the defendants filed their reply to the injunction application and sought vacation of the interim order under Order XXXIX....
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....efendant. The commercial does not according to the defendant seek to convey the message that the plaintiff's product is outdated or less efficient than that of the defendant. It is also asserted that the defendant's product is based on the latest technology and that the commercial does not contain any false statement regarding the same. 12. I have heard learned counsel for the parties and perused the record. Two questions primarily arise for considerations, of which the first in order is whether a rival tradesman can carry on an advertisement campaign which disparages or denigrates the products of another and the second question is whether the TV commercials of the defendants in the present case in any manner disparage and/or denigrate the products of the plaintiff's. I propose to deal with the questions ad seriatim. RE: Question No. 1 13. It is trite that no one can by his act of omission or commission cause to another an injury to his or her reputation or goodwill nor can a rival in trade or industry slander or defame the goods or products of another trader or manufacturer. Law would consider any slanderous campaign or comment to be an actionable injury which....
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....to me impossible to say that it will lie because he says that they are better in this or that or the other respect." 14. The above decision was followed by Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark, Ltd., 1899(1) QB 86. In that case the products of two rival manufacturers were compared by an examiner who certified that one of the products had a slight edge over the other, but for all practical purposes they could be regarded as equal. The Court of appeal did not find that statement actionable even if untrue. It observed: "The truth is that the defendants' circular when attentively read comes to no more than a statement that the defendants' white zine is equal to, and, indeed, somewhat better, than the plaintiffs'. Such a statement, even if untrue and the cause of loss to the plaintiffs, is not a cause of action. Moreover, an allegation that the statement was made maliciously is not enough to convert what is prima facie a lawful into a prima facie unlawful statement. It is not unlawful to say that one's own goods are better than other people's; and Allen v. Food (1) shows that malice in such a case is immaterial." 15. In ....
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....ch of this Court noticed the decisions rendered on the subject and observed: "After analysing the submissions made by the counsel for the parties the picture which emerges can be summed up thus; it is now a settled law that mere puffing of goods is not actionable. Tradesman can say his goods are best or better. But by comparison the tradesman cannot slander nor defame the goods of the competitor nor can call it bad or inferior." 18. To the same effect are the decisions of the Court in Dabur India Ltd. v. Emami Ltd., 112(2004)DLT73 , Dabur India Ltd. v. Colgate Palmolive India Ltd. 2004 (29) PTC 401 and Dabur India Ltd. v. Colgate Palmolive India Ltd., 115(2004)DLT667 . 19. Two propositions clearly emerge from the above pronouncements, namely, (1) that a manufacturer or a tradesman is entitled to boast that his goods are the best in the world, even if such a claim is factually incorrect, and (2) that while a claim that the goods of a manufacturer or the tradesman are the best may not provide a cause of action to any other trader or manufacturer of similar goods, the moment the rival manufacturer or trader disparages or defames the goods of another m....
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....trained the telecast of the advertisement. 23. In Dabur India Ltd. v. Emami Ltd., 112(2004)DLT73 , the advertisement of the defendant exhorted the viewers to take Amritprash and not Chawanprash in summers. The Court found this statement also to be disparaging. 24. In Dabur India Ltd. v. Colgate Palmolive India Ltd., 115(2004)DLT667 , the defendants advertisement claimed that Lal Dant Manjan was harmful for the teeth. The plaintiff who manufactured Lal Dant Manjan successfully complained to the Court who found the statement and the comparison disparaging. 25. In Reckitt & Colman of India v. M.P. Ramachandran and Anr. 1999 (19) PTC 741, the defendants advertisement showed that 'blue' was a product of obsolete technology, and Therefore, does not dissolves completely in water. The Court found that statement to be disparaging. It held that the statement did not present a technological disadvantage of the product of the petitioner as was asserted by the defendant but an insinuation against the product itself. 26. Coming then to the facts of the present case, the defendant's commercial, which provoked the filing of the suit, showed the pluggy device of the plaintif....
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....examined in that backdrop. The first is whether the altered design of the pluggy device makes any material difference in the matter of conveying the message which the commercial intends to convey to the viewers. The second aspect is whether a disparagement of a general concept is actionable in law, if such disparagement is otherwise unsustainable on the touchstone of any technological advantage, which the defendant's product may be enjoying over the product, that is, disparaged. 29. There is considerable merit in the submission made by Mr. Jaitley that the original advertisement, against which the plaintiff had complained, showed a pluggy device deceptively similar to the defendant's device, if not the very device which the defendant manufactures and markets. The message contained in the advertisement was that pluggy devices used as mosquito repellents in which the defendant is the market leader are old, obsolete and outdated method of chasing the mosquitoes and deserve to be discarded as the lady model in the commercial actually does so. Re-run of the same commercial, with a slightly modified design of the device or colour scheme, does not materially alter either the me....
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.... goods. The argument looks attractive at its face value but is not equally sound when examined closely. The devices manufactured by the parties are based on the same concept. The concept is simple and intelligible even to a layman. The devices use a compound 96.40% of which is solvent deodorized kerosene with 1% each of perfume and stabilizer added to the same. Prallethrin is used as an active ingredient that counts for the remaining 1.60%. The compound is contained in a bottle immersed in which is one end of the wick the other profounding out of the container at the top. The exposed end of the wick is inside an electrically heated device which helps the compound to get vaporised. There is thus no real distinction between the two products either from the point of view of the concept underlying their manufacture or technology used for the purpose. And yet the defendant claims that its product chases away mosquitoes at twice the speed. There is no scientific basis or method for verifying that claim as indeed there appears to be no basis even for making it. But in order to puff up the product, the defendant may be entitled to boast no matter unjustifiably about the efficacy of the dev....