Himachal Pradesh High Court
Years vs Mahanagar Telephone on 28 July, 2022
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF JULY, 2022
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
OMP NO. 404 OF 2022 IN COMS No. 15 of 2022
Between:-
M/S DABUR INDIA LIMITED, HAVING
REGISTERED OFFICE AT 8/3, ASAF ALI
ROAD, NEW DELHI-110002
ALSO AT PLOT NO. 109, HPSIDC
INDUSTRIAL AREA, BADDI, DISTT.
SOLAN (HP)-173205.
THROUGH ITS AUTHORIZED
REPRESENTATIVE/AUTHORIZED
SIGNATORY MR. MUDIT RAIZADA, S/O
RAHUL RAIZADA, AGED ABOUT 33
YEARS, R/O B-10/7361, VASANT KUNJ,
NEW DELHI-110070.
..PLAINTIFF/APPLICANT
(BY SHRI B.C. NEGI, SENIOR
ADVOCATE, WITH M/S PRABHU
TANDON, SHRADHA KAROL,
ADVOCATES AND SH. MUDIT RAIZADA,
AN AUTHORIZED REPRESENTATIVE)
AND
M/S MARICO LIMITED THROUGH ITS
DIRECTOR HAVING REGISTERED
TH
OFFICE AT 7 FLOOR, GRANDE
PALLADIUM, 175, CST ROAD, KALINA,
SANTA CRUZ (EAST) MUMBAI-400098.
ALSO AT PLOT NO. 08/INDUSTRIAL
AREA, LODHIMAJRA, TEHSIL
NALAGARH, DISTT. SOLAN-174101,
HIMACHAL PRADESH.
....DEFENDANT /NON-APPLICANT
::: Downloaded on - 28/07/2022 20:05:35 :::CIS
2
(BY SHRI ANKUSH DASS SOOD, SENIOR
ADVOCATE, WITH M/S JYOTIRMAY BHATT,
SHASHWAT RAKSHIT AND SUSHMIT BHATT,
.
ADVOCATES)
Reserved on: 22.07.2022
Decided on: 28.07.2022
Whether approved for reporting? Yes.
__________________________________________________
This application coming on for pronouncement of order this day,
Hon'ble Mr. Ajay Mohan Goel, passed the following:-
O R D E R
By way of this application filed under Order XXXIX, Rules
1 and 2 of the Code of Civil Procedure, the applicant/plaintiff
(hereinafter referred to as 'the plaintiff') has prayed for the following
reliefs:-
"It is therefore prayed that this application be
allowed and the respondent including its directors,
associates, assigns in business, sister concerns,
distributors, dealers, stockiest and agents may be
restrained by way of ad-interim injunction from
broadcasting, printing and publishing or from
creating the Impugned advertisement or any other
content or part thereof and/or publishing;
broadcasting or circulating in print or sharing or
hosting on any website or publishing in any other
manner whatsoever containing
defamatory/disparaging content or any other content
from circulating or making it available to public by
any means including through
print/television/Internet/social media or in any other
manner as may amount to defamation and
disparagement of plaintiff and its products."
.
2. The case of the plaintiff is that it is a Public Limited
Company having its registered office at 8/3, Asaf Ali Road, New Delhi-
110002 as also at Plot No. 109, HPSIDC Industrial Area, Baddi, District
Solan, H.P. The plaintiff claims to be the leading manufacturer of a large
range of pharmaceuticals, toiletries and medicinal preparations since
1884. As per the plaintiff, it is India's leading and most trusted FMCG
Company and world's largest Ayurvedic and Natural Health Care, Oral
Care, Skin Care, Home Care and Foods company. It has expanded into
variety of goods and business over past several decades. The goods of
the plaintiff are marketed under its house mark 'DABUR', as also
several other trade marks, such as 'HAJMOLA, PUDINHARA, VATIKA,
DABUR CHYAWANPRASH, DABUR AMLA HAIR OIL, DABUR HONEY,
REAL, ODONIL, DANBLOCK and ODOMOS' etc. According to the
plaintiff, it has acquired valuable goodwill and reputation in its trade on
account of its extremely superior quality products, which is reflected in
its annual sales turnover for the financial year 2020-21, which is
approximately Rs.9886/- Crores. According to the plaintiff, it
manufactures and markets approximately 450 products, of which, 72
products are extensively advertised on 179 television channels all over
India. Further, as per the plaintiff, in early 1950's, it adopted trade mark
"Dabur AMLA Hair Oil" and launched the same in India. In the year
1967, plaintiff obtained first registration of the trade mark "Dabur AMLA"
for hair oil in India. Thereafter, it secured several registrations of the
.
mark containing the word "AMLA" across the world. Plaintiff has been
exporting and selling Dabur AMLA Hair Oil/AMLA Oil across the world
besides its sale in India. As per the plaintiff, it regards its trade marks as
valuable asset and continually maintains and protects them. Plaintiff is
first ever adopter and user of the trade mark "Dabur AMLA HAIR OIL" in
relation to goods falling under Class-3 under the Trade Marks Act. It has
spent substantial amount on the advertisement of brand "Dabur AMLA
HAIR OIL" since its date of adoption. Further, as per the plaintiff, the
defendant is a registered Company, which is having its registered office
at 7th Floor, Grande Palladium, 175, CST Road, Kalina, Santa Cruz
(East), Mumbai-400098 as also at Plot No. 08/Industrial Area,
Lodhimajra, Tehsil Nalagarh, District Solan-174101, Himachal Pradesh.
It is in the business of manufacturing and marketing 'Nihar Shanti Hair
Oil' apart from other products. According to the plaintiff, in the month of
May, 2022, plaintiff came across defendant's print Advertisement, which
was published in 'Dainik Bhasker' Newspaper, being circulated and sold
in Himachal Pradesh. The defendant published an Advertisement for its
product 'NIHAR SHANTI AMLA' Hair Oil, wherein the defendant has
denigrated and disparaged the plaintiff's well known and registered
trade mark 'Dabur AMLA HAIR OIL'.
3. Learned Senior Counsel appearing for the plaintiff argued
that the defendant's impugned Advertisement displays the plaintiff's well
.
known trade mark 'Dabur AMLA HAIR OIL' with 'NIHAR SHANTI AMLA'
Hair Oil and it attempts to mislead the consumers into believing that the
product of the defendant is better in terms of price, quantity and quality
as compared to the product of the plaintiff. Learned Senior Counsel by
referring to the averments contained in para-33 of the plaint, stated that
the plaintiff also recently discovered that the impugned Advertisement
was also released by the defendant as TV Commercial on 16th June,
2022 on public television, which was being currently aired on several
national and regional news channels. Learned Senior Counsel
submitted that the defendant's use and representation of the plaintiff's
product 'Dabur AMLA HAIR OIL' in the Advertisement under challenge
is a deliberate act of the defendant to show the product of the plaintiff in
a bad light. As per him, though the defendant is entitled to propagate
and advertise its products as good products, however, the defendant
cannot be permitted to tarnish or disparage the products of another
competitors like the plaintiff, who is a market leader, through its
Advertisement. Learned Senior Counsel stated that the defendant not
only displays the product of the plaintiff inappropriately by making the
bottle of the plaintiff to look smaller in size in the Advertisement, but
the contents of the Advertisement amount to: (a) disparagement; (b)
unfair competition; and (c) dishonest and malafide act on the part of the
defendant. Learned Senior Counsel submitted that the tag line in the
impugned Advertisement directly attacks the plaintiff. He submits that
.
the tag line: "NIHAR SHANTI AMLA MILE DABUR AMLA SE
LAGBHAG AADHEY DAAM ME" demonstrates that the defendant is
purposely provoking the readers/consumers to believe that there is a
difference in quality in the product of the defendant, i.e., 'NIHAR
SHANTI AMLA' Hair Oil and the product of the plaintiff, i.e., 'Dabur
AMLA HAIR OIL' and this has been done with a negative connotation to
suggest that the plaintiff's product is inferior in quality. Learned Senior
Counsel further submitted that the impugned Advertisement shows the
product of the plaintiff in a bad light and is demeaning and
defaming/disparaging the same, which is adversely affecting the
goodwill of the plaintiff which has been acquired over decades. Learned
Senior Counsel has also submitted that the impugned act of the
defendant is also an infringement of the provisions of Section 29(8)(c)
of the Trade Marks Act and accordingly, he has prayed that during the
pendency of the suit, interim relief, as prayed for, be granted. Learned
Senior Counsel for the plaintiff relied upon the following judgments:-
"1. Tata Press Ltd. Versus Mahanagar Telephone
Nigam Limited and others, (1995) 5 SCC 139.
2. Pepsi Co., Inc. and Ors. Versus Hindustan
Coca Cola Ltd. and Anr., 2003 SCC OnLine
Del.802.
3. Dabur India Ltd. Versus M/s. Colortek
Meghalaya Pvt. Ltd. 2010 SCC OnLine Del.
.
4. Havells India Ltd. & Anr. Versus Amritanshu
Khaitan & Ors., 2015 SCC OnLine Del. 8115.
5. Glaxismithkline Consumer Healthcare Ltd.
Versus Heinz India (P) Ltd., I.A.
No.15233/2008 (O-39, R-1 & 2 CPC)
in CS (OS) 2577/2008.
6. Colgate Palmolive Company and Anr. Versus
Hindustan Unilever Ltd., FAO (OS) 396/2013
& CM No.13486/2013.
7. Hindustan Unilever Limited Versus Reckitt
r benckiser India Limited., ILR (2014) II Delhi
1288, RFA (OS).
8. Reckitt Benckiser (India) Ltd. Versus
Hindustan Lever Limited., CS (OS)
1359/2007.
9. Reckitt Benckiser (India) Ltd. Versus
Hindustan Unilevere Ltd., CS (OS)
1834/ 2012 & IANo.11467/2012 (O-39, R-1 &
2).
10. Reckitt Benckiser (India) Pvt. Ltd. Versus
Gillete India Ltd., FAO (OS) 185/2016.
11. Gillette India Limited Versus Reckitt Benckiser
(India), Private Limited., 2018 SCC OnLine
Mad 1126.
12. Eureka Forbes Limited, Kolkata Versus
Pentair Water India Private Limited, Goa.,
2006 SCC OnLine Kar 753."
4. The application is opposed by the defendant. Learned
Senior Counsel appearing for the defendant argued that the plaintiff is
not entitled for any interim relief, as prayed for, as the plaintiff has
neither made out any case on merit for grant of any such relief nor the
plaintiff has approached this Court with clean hands. As per the
defendant, it is one of the leading players in the Fast Moving Consumer
Goods (FMCG) market in India and it manufactures and markets
.
packaged coconut oil, hair oil, personal care product(s) and good
products under its portfolio of various well known and established
household brands such as "Parachute", "Parachute Advansed, "Saffola"
"Livon", "Hair & Care", Silk-N-Shine", "Nihar", "Medikar", "Revive" and
"Set Wet". It has presence in more than 25 countries and its brands
target all sections of consumers. It has won various awards in business
excellence and it has earned great good will and reputation on the
strength of the products being manufactured and marketed by it.
According to the defendant, its annual turnover for the year 2021-22
was Rs.7214 Crore and its annual advertisement and sale promotion
expenses for the said year was Rs. 453 Crore. Learned Senior Counsel
submitted that the trade mark of "Nihar" was conceived and adopted by
the predecessor-in-title, i.e., Hindustan Lever Limited, somewhere in
the year 1993 which thereafter was acquired by the defendant on 17th
February, 2006. Thereafter, the trade mark "Nihar" has been
continuously and uninterruptedly used by it and it has acquired statutory
rights for the word mark "Nihar". The hair oil manufactured and
marketed under the brand name NIHAR NATURALS SHANTI BADAM,
is highly sought after hair oil by the consumers on account of its quality
and price and defendant otherwise also is market leader by volume in
the AMLA HAIR OIL segment in the country. According to him, the
market share in terms of sales volume of the defendant in Indian market
as of MAT May 2022 was 42%, whereas that of Dabur Amla was 28%.
.
Learned Senior Counsel for the defendant submitted that the plaintiff is
guilty of forum shopping and suppression of facts. He stated that the
plaintiff had instituted a Civil Suit, i.e., CS(COMS) No. 71 of 2018, titled
as Dabur India Limited Vs. Marico Limited in the High Court of Delhi
against a similar advertisement of the defendant, wherein, the cause of
action was based on a television commercial as also print
advertisement. In the alleged offending act therein, there was a
depiction of bottle of plaintiff's product and defendant's product
alongwith measuring/volumetric flask wherein it was shown that the
defendant was selling almost double volume of 'NIHAR SHANTI
BADAM AMLA' Hair Oil in comparison to the 'DABUR AMLA' Hair Oil at
almost same price. The question posed in the advertisement was "To
Ab Dabur Amla Kyun". Learned Counsel submitted that as no interim
relief was granted in favour of the plaintiff in said suit by the Delhi High
Court, therefore, the suit was withdrawn by the plaintiff in the year 2019
but said fact has been conveniently concealed from this Court by the
plaintiff. Learned Senior Counsel while drawing the attention of the
Court to the averments contained in the reply submitted that even
complaints were filed by the plaintiff against the defendant before
various forums and all these facts have been concealed from this Court
by the plaintiff. Learned Senior Counsel submitted that the suit
otherwise also is not maintainable as it is neither a commercial suit nor
any cause of action has accrued in favour of the plaintiff to file and
.
maintain the suit property. He submitted that whenever it has to be
assessed as to whether an advertisement is disparaging or not, the
factors which to be taken into consideration are: (a) The intent of the
advertisement; (b) The overall effect of the advertisement; and (c) The
manner of advertising. He submits that the manner, intent and effect of
defendant's advertisement is to simply compare the quantity and price
of the plaintiff and the defendant's product and thereafter let the
consumers decide for themselves about the quality. He argued that the
advertisement in issue does not makes any statement urging the
consumers to buy either of the products, more so, to buy the product of
the defendant over that of the plaintiff. According to him, filing of the suit
and making prayer for interim relief therein is just to throttle healthy
competition. Learned Senior Counsel further submitted that to establish
the ingredients of tort of disparagement, neither a valid cause of action
has been established nor any financial loss or other loss has been
placed on record, which also entails dismissal of the application.
Learned Senior Counsel further submitted that the plaintiff itself has
been issuing advertisements, as are referred and depicted in the reply
from internal page 57 onwards thereof, wherein the plaintiff has also
portrayed the product of the defendant by name against its product and
posed a question to the consumers "so when you are switching your
coconut oil". Learned Senior Counsel stated that he who seeks equity,
has to be fair and plaintiff cannot after itself issuing such kind of
.
advertisements, as referred to above, be allowed to approach the Court
seeking injunction against similar advertisements being issued by the
competitors. Learned Senior Counsel further submitted that the
defendant's advertisement is not disparaging in nature. It is completely
honest and truthful and nothing negative has been stated regarding the
plaintiff's product, either explicitly or impliedly. The advertisement
merely states a fact regarding the quantity and price of the product in
issue and even otherwise comparative advertisement is permissible in
law and therefore also, the plaintiff is not entitled for any relief.
5. Learned Senior Counsel for the defendant has relied upon
the following judgments:-
"1. Tata Press Ltd. Versus Mahanagar Telephone
Nigam Limited and others, (1995) 5 SCC 139.
2. Colgate Palmolive Company and Anr. Versus
Hindustan Unilever Ltd., 2013 SCC OnLine Del.
4986.
3. Havells India Ltd. & Anr. Versus Amritanshu
Khaitan & Ors., 2015 SCC Online Del. 8115.
4. Procter & Gamble Products Private Limited
Versus Hindustan Unilever Ltd., 2017 SCC
OnLine Del. 7072"
6. In rebuttal, learned Senior Counsel for the plaintiff has
reiterated its stand that the infringing advertisement is disparaging and
as the same is not permissible in law, therefore, the application be
allowed as prayed for.
.
7. I have heard learned counsel for the parties and also gone
through the pleadings and other material referred to by learned counsel
for the parties, including the judgments/orders relied upon by them.
8. Before proceeding further, I will refer to the judgments,
which have been relied upon by learned counsel for the parties.
9. In Tata Press Ltd. Versus Mahanagar Telephone
Nigam Limited and others (1995) 5 SCC 139, Hon'ble Supreme Court
has held that "commercial speech" is a part of the freedom of speech
and expression guaranteed under Article 19 (1) (a) of the constitution.
Hon'ble Supreme Court held that our Constitution itself lays down in
Article 19 (2) the restrictions which can be imposed on the fundamental
right guaranteed under Article 19 (1) (a) of the Constitution and thus,
the "Commercial speech" which is deceptive, unfair, misleading and
untruthful would be hit by Article 19 (2) of the Constitution and can be
regulated/prohibited by the State. Hon'ble Supreme Court also held that
advertising as a commercial speech has two facets and advertising
which is no more than a commercial transaction, is nonetheless
dissemination of information regarding the product-advertised and
public at large is benefitted by the information made available through
the advertisement. Hon'ble Supreme Court also held that in a
democratic economy, free flow of commercial information is
indispensable and there cannot be honest and economical marketing
by the public at large without being educated by the information
.
disseminated through advertisements and the economic system in a
democracy would be handicapped without there being freedom of
"commercial speech". Hon'ble Supreme Court further held that the
protection of Article 19 (1) (a) is available to the speaker as well as to
the recipient of the speech as the recipient of "commercial speech" may
be having much deeper interest in the advertisement than the
businessman who is behind the publication. It held that an
advertisement giving information regarding a life saving drug may be of
much more importance to general public than to the advertiser who may
be having purely a trade consideration.
10. In Pepsi Co., Inc. and Ors. Versus Hindustan Coca Cola
Ltd. and Anr. 2003 SCC OnLine Del.802, Hon'ble Delhi High Court
held that to decide the question of disparagement the following factors
are to be kept in mind, namely; (i) Intent of commercial (ii) Manner of
the commercial (iii) Story line of the commercial and the message
sought to be conveyed by the commercial. It held that 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.
11. In Dabur India Ltd. Versus M/s. Colortek Meghalaya Pvt.
Ltd. 2010 SCC OnLine Del. 391, Hon'ble Delhi High Court by relying
.
upon (1995) 5 SCC 139 titled as Tata Press Ltd. (supra) held as under:-
"14. In John R. Bates and Van o'Steen vs. State
Bar of Arizona 53 L. Ed. 2nd 810, two attorneys licensed to
practice law in Arizona placed an advertisement in a
phoenix newspaper, stating that they were offering "legal
services at very reasonable fees" and listing their fees for
various matters. The advertisement was in violation of
disciplinary rules of the Supreme Court of Arizona which
prohibited Arizona lawyers from publicizing themselves,
their partners or their associates by "commercial" means.
On a complaint filed by the President of the State Bar, the
Board of Governors recommended a one week suspension
for each attorney. The two lawyers then sought review in
the Supreme Court of Arizona which rejected their
contention that the disciplinary rules infringed their First
Amendment rights. On an appeal, the United States
Supreme Court reversed the judgment of the Supreme
Court of Arizona on the question of First Amendment rights.
Speaking for the court Blackmun, J. held that the blanket
suppression of advertising by attorneys violated a free
speech clause of First Amendment. The Court rejected
arguments that such advertising would have an adverse
effect on professionalism, would be inherently misleading,
would have an adverse effect on the administration of
justice, would produce undesirable economic effects, and
would have an adverse effect on the quality of legal
services. The Court, however, further held that such
advertising, if false, deceptive or misleading could continue
to be restrained, and that, as with other varieties of speech,
.
such advertising could be made subject to reasonable
restrictions on the time, place and manner of such
advertising."
12. Hon'ble Delhi High Court in Havells India Ltd. & Anr.
Versus Amritanshu Khaitan & Ors 2015 SCC OnLine Del. 8115, in
Para-41 thereof held as under:-
" 41. This Court is also of the view that for any
advertisement to be considered misleading, two essential
elements must be satisfied. First, misleading advertising
must deceive the persons to whom it is addressed or at
least, must have the potential to deceive them. Secondly,
as a consequence of its deceptive nature, misleading
advertising must be likely to affect the economic behaviour
of the public to whom it is addressed, or harm a competitor
of the advertiser."
13. In Eureka Forbes Limited, Kolkata Versus Pentair Water
India Private Limited, Goa. 2006 SCC OnLine Kar 753, Hon'ble
Karala High Court in Para-25 held as under:-
"25. What is pertinent, is to examine the
advertisement in question in the context of the business of
the appellant herein. Viewed from the said angle, though
the respondent has every right to market its product by
claiming that its product is superior in quality, yet, at the
same time, the freedom of expression i.e., the right to
advertise, does not permit one to go to that extent as to
cause damage or irreparable injury to the product of
others. Merely because the respondent has every right to
.
market its product by stating that it's products are of
superior quality over others, yet, it cannot go to the extent
of stating that the contaminants are invisible even to UV
water purifier. In other words, had the advertisement in
question stopped Page 0156 with the words "water
contains contaminants that are invisible to the naked eye",
certainly, the appellant would not have had any reason to
complain. But, having said so as above, the advertisement
goes on to say that "it is invisible even to the UV water
purifier". The mention of 'UV' has further given rise to
disparaging the water purifier of the appellant company. As
such, in my considered opinion, the rulings referred to by
the learned senior counsel for the respondent cannot
come to its aid so as to contend that the advertisement in
question is not one causing disparagement to the
appellant company."
14. In Colgate Palmolive Company and Anr. Vs. Hindustan
Unilever Ltd., FAO (OS) 396/2013 & CM No.13486/2013, Hon'ble
Delhi High Court held as under:-
"58. The learned counsel for the appellants has
made submissions as to how the colour scheme and
certain finer aspects of the advertisement are all designed
to disparage Colgate ST and has also handed over a
glossy print of the advertisement alongwith comments
pointing out as to how the Pepsodent GSP is shown not
only to be superior than Colgate ST but also depicting that
use of Colgate would cause discomfort to its user. We do
not find it necessary to examine each of those comments
separately, as in our view, an advertisement must be
.
viewed in the perspective of the impression that is obtained
by an average consumer/prospective consumer who
views/reads the advertisement. Viewed from the
perspective of an average person with imperfect
recollection, we are in no manner of doubt that the
advertisement not only conveys an impression that use of
Colgate would not be as effective as Pepsodent but also
conveys an impression that use of Colgate ST instead of
Pepsodent GSP would result in causing harm and
discomfort to its consumers. This is clearly the essential
message of the visual story depicted by juxtaposing the
two children, one happy and enjoying his dessert and the
other who is in discomfort and unable to consume the
dessert placed before him on account of a dental ailment.
Given the fact that advertisements are not analysed
carefully but are usually glanced over by most readers. It is
apparent that a consumer who glances at this
advertisement would, surely carry the impression as stated
above. Thus, in our view, the impugned print advertisement
is prima facie disparaging of the appellant's goodwill and its
product Colgate ST."
15. In Reckitt Benckiser (India) Ltd. Vs. Hindustan Lever
Limited, CS (OS) 1359/2007, Hon'ble Delhi High Court held that
between clear cut cases of permissible comparative advertising and
impermissible "rubbishing" of a rival‟s product, there may yet be a wide
field of cases and the dividing line in such cases would have to be
drawn based on the test whether a reasonable man would take the
claim of the alleged slanderer seriously or take it with the proverbial"
.
large pinch of salt‟ and dismiss it as mere puffery. If it is the former
then, it is a case of disparagement and if it is the latter then, it is a case
of mere puffery which is not actionable.
16. In Hindustan Unilever Limited Vs. Reckitt benckiser
India Limited, ILR (2014) II Delhi 1288, RFA (OS), Hon'ble Delhi High
Court in Para-58 held as under:-
"58. As this Court understands, the plaintiff‟s
grievance is not that HUL simplistically depicted its
DETTOL Original in a bad light or denigrated it. That
argument would have been natural if Reckitt alleged that
the soap shown in the advertisement alone constituted
denigration of its product. However, the overall effect on
the viewer - the shape of the soap, the green packaging,
the number of times the soap was shown, the suggestion
made that antiseptic soaps are bad for the skin, as they
allow germ build up - is complained to constitute what is
termed as a defamatory innuendo. This court had, earlier in
Dabur India, recognized that clever advertising can suggest
something which is plainly not said, and create the desired
impact in the mind of the viewer. The innuendo, or the
suggestion of something more than what is spoken, is one
such device."
17. In Gillette India Limited Versus Reckitt Benckiser
(India), Private Limited, 2018 SCC OnLine Mad 1126, Hon'ble
Madras High Court held that in judging the balance of convenience, the
Court would have to weigh the competing interest of the applicant for
.
injunction and the party opposing injunction and address to itself the
question of who would suffer greater prejudice, i.e. the plaintiff applicant
by refusal of injunction, if the proceedings ultimately succeed, or the
respondent by grant of injunction, if the suit ultimately fails. Learned
Court also held that it is important for the Court to keep in mind the fact
that watching televisions and surfing internet are part of the daily
routine in every household and advertisements have a great impact on
viewers. In judging an advertisement, one has to keep in mind the
potential users of the goods and services advertised.
18. In Glaxismithkline Consumer Healthcare Ltd. Versus
Heinz India (P) Ltd., I.A. No.15233/2008 (O-39, R-1 & 2 CPC) in CS
(OS) 2577/2008, Hon'ble Delhi High Court in Para-31 held as under:-
"31. This Court is of the opinion that a fair
application of the tests indicated in the previous part of this
judgment, would lead to the conclusion that Horlicks‟
advertisement does not disparage. The price comparison is
by a trader, who wishes to advertise that his product has a
cost (or price) advantage, over the rival‟s goods. It
accurately describes the position. The difference in
attributes of the consumer, is part of a natural dialogue,
where the Complan boy proclaims with pride that using it
(Complan) makes him stronger; the other boy, naturally
responds saying that Horlicks makes him taller, stronger
and sharper. This is at best an instance of puffing. As far as
Heinz‟s complaint about the impact of Horlicks‟
.
advertisement that Complan is less nutritional is
concerned, the Court notes that there is no comparison of
ingredients, nor is the advertiser basing the claim on any
expert opinion or report. It is just the claim of a boy, no
more than that. In the circumstances, it is held that the
Horlicks advertisement, impugned in the Bombay suit, does
not disparage Complan."
19. In Reckitt Benckiser (India) Ltd. Versus Hindustan
Unilevere Ltd., CS (OS) 1834/2012 & IA No.11467/2012 (O-39, R-1 &
2), Hon'ble Delhi High Court held that without a doubt comparative
advertising is beneficial as it increases consumer awareness and
therefore, it is permissible but not by pulling down the reputation of your
competitor by showing its product in debauched light. Advertising is a
medium through which an advertiser can establish his brand in the
market, but at the same time there are certain set of laws that cannot
be deserted.
20. In Reckitt Benckiser (India) Pvt. Ltd. Versus Gillete
India Ltd., FAO (OS) 185/2016, Hon'ble Delhi High Court held as
under:-
"45. Unlike in defamation cases, where there is a
thumb rule that a statement could be taken to be
defamatory if it is capable of one meaning only which is
slanderous and not that the statement is capable of being
perceived or taken in a different sense, the aforesaid rule
may not have necessary application in a case of malicious
.
falsehood as a tortious liability. If a statement is capable of
being construed in a different manner which could lead to
slanderous results, the same would be prohibited."
21. In Colgate Palmolive Company and Anr. Versus
Hindustan Unilever Ltd., 2013 SCC OnLine Del. 4986, Hon'ble Delhi
High Court in Paras 26 to 29 held as under:-
"26. Before proceeding further to address the
controversy involved in the present proceedings, it would
be apposite to bear in mind the meaning and import of the
expressions ―disparagement and ―puffing and similar
cognate expressions. The Black's Law Dictionary, Eighth
Edition, defines ―Disparagement to inter-alia mean:-
―A derogatory comparison of one thing with another; the
act or an instance of castigating or detracting from the
reputation of, esp. unfairly or untruthfully; a false and
injurious statement that discredits or detracts from the
reputation of another's property, product or business.
Black's Law Dictionary, Eighth Edition, defines ―Trade
Disparagement‖ to inter-alia mean:
―The common-law tort of belittling someone's business,
goods, or services with a remark that is false or misleading
but not necessarily defamatory. To succeed at the action, a
plaintiff must prove that; the defendant made the
disparaging remark; the defendant intended to injure the
business, knew that the statement was false, or recklessly
disregarded whether it was true; and the statement resulted
in special damages to the plaintiff, by passing off. Black's
Law Dictionary, Eighth Edition, defines Puffing as under: -
―The expression of an exaggerated opinion - as opposed
to a factual misrepresentation - with the intent to sell a good
or service; Puffing involves expressing opinions, not
asserting something as a fact. Although there is some
leeway in puffing goods, a seller may not misrepresent them
or say that they have attributes that they do not possess.
27. The law relating to disparaging
advertisements is now well settled.
.
While, it is open for a person to exaggerate
the claims relating to his goods and indulge in puffery, it is
not open for a person to denigrate or disparage the goods
of another person. In case of comparative advertisement, a
certain amount of disparagement is implicit. If a person
compares its goods and claims that the same are better
than that of its competitors, it is implicit that the goods of
his competitor's are inferior in comparison. To this limited
extent, puffery in the context of comparative advertisement
does involve showing the competitor's goods in a bad light.
However, as long as the advertisement is limited only to
puffing, there can be no actionable claim against the same.
In the case of White v. Mellin,: (1895) A.C. 154, the House
of Lords while rejecting the contention of disparagement
observed as under:
―The allegation of a tradesman that his goods are better
than his neighbour's very often involves only the
consideration whether they possess one or two qualities
superior to the other. Of course ―better means better as
regards the purpose for which they are intended, and the
question of better or worse in many cases depends simply
upon one or two or three issues of fact. If an action will not
lie because a man says that his goods are better than his
neighbour's, it seems to me impossible to say that it will lie
because he says that they are better in this or that or the
other respect. Just consider what a door would be opened
if this were permitted. That this sort of puffing
advertisement is in use is notorious; and we see rival cures
advertised for particular ailments. The Court would then be
bound to inquire, in an action brought, whether this
ointment or this pill better cured the disease which it was
alleged to cure
- whether a particular article of food was in this respect or
that better than another. Indeed, the Courts of law would
be turned into a machinery for advertising rival productions
by obtaining a judicial determination which of the two was
the better.
28. The above decision was further explained by the
Chancery Division in the case of De Beers Abrasive
Products Ltd. and Others v. International General Electric
.
Co. of New York Ltd. and Another: 1975 (2) All ER 599,
wherein while considering an allegation of false advertising
causing injury to a rival traders group, the court observed
as under:-
―the law is that any trader is entitled to puff his own
goods, even though such puff must, as a matter of pure
logic, involve the denigration of his rival's goods........
―The best tailor in the world, ―The best tailor in this town,
and ―The best tailor in this street, none of the three
committed an actionable wrong ...... Where, however, the
situation is not that the trader is puffing his own goods, but
turns to denigrate those of his rival, then, in my opinion, the
situation is not so clear cut. Obviously 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.‖ Accordingly, I do not think
such a statement would be actionable. At the other end of
the scale, if what is said is: ―My goods are better than X's,
because X's are absolute rubbish, then it is established by
dicta of Lord Shand in the House of Lords in White v. Mellin
[1895] A.C. 154, 171, which were accepted by Mr. Walton
as stating the law, the statement would be actionable.
29. Thus, as long as claims made in an advertisement
are considered only as puffery, no interference with the
same by the courts would be warranted. This is for a
simple reason that puffing involves expressing opinions
and are not considered as statements of fact which can be
taken seriously. As puffery is neither intended to make a
representation as to facts nor is considered as such by the
target audience. The advertisement involving puffery, thus,
cannot be stated to be misrepresenting facts. It is common
for advertisements to make extravagant and exaggerated
claims in relation to goods and services. It is expected that
an advertiser would embellish the goods and services that
are advertised and such puffery is neither expected to be
nor is taken seriously by any average person. This was
also observed by the Chancery Division in De Beers
Abrasive Products Ltd. (supra) as under:-
―In other words, in the kind of situation where one
.
expects, as a matter of ordinary common experience, a
person to use a certain amount of hyperbole in the
description of goods, property or services, the courts will do
what any ordinary reasonable man would do, namely, take
it with a large pinch of salt.
22. In Havells India Ltd. & Anr. Vs. Amritanshu Khaitan &
Ors., 2015 SCC OnLine Del. 8115, Hon'ble Delhi High Court in Paras
48 to 52 held as under:-
"48.
r to
In the opinion of this Court, it is open to an
advertiser to highlight a special feature/characteristic of his
product which sets it apart from its competitors and to
make a comparison as long as it is true. For instance, if a
chocolate biscuit manufacturer issues a comparative
advertising highlighting that his product has the highest
chocolate content and the lowest price, then in the opinion
of this Court the rival manufacturer cannot seek an
injunction on the ground that fibre content or calorific value
or protein content had not been compared.
49. In other words, it is open to an advertiser to
objectively compare one or more material, relevant,
verifiable and representative feature of the goods and
services in question which may include price. There is no
requirement in law to disclose each and every
factor/characteristic in comparative advertisement. No
reasonable observer would expect one trader to point to all
the advantages of its competitor‟s business and failure to
do so does not per se take the advertising outside what
reasonable people would regard as „honest‟.
50. It is also pertinent to mention that it is the
defendants‟ case that the impugned adverting campaign
compared all the common features mentioned in all
.
competitors packaging.
51. Further, tomorrow, if plaintiffs in response to
defendant‟s advertising campaign, launch a comparative
advertising highlighting its alleged salient features like
power factor, life of bulb, it cannot be injuncted on the
ground that the factor of brightness/lumens has not been
mentioned.
52. In fact, mere trade puffery, even if
uncomfortable to the registered proprietor, does not bring
the advertising within the scope of trade mark
infringement. Much advertising copy is recognised by the
public as hyperbole. The Act, 1999 does not impose on the
courts an obligation to try to enforce, through the back
door of trade mark legislation, a more puritanical
standard."
23. In Procter & Gamble Products Private Limited Versus
Hindustan Unilever Ltd., 2017 SCC OnLine Del. 7072, Hon'ble Delhi
High Court in Paras 38 to 40 held as under:-
"38. In applying the test, whether the words spoken
or written are defamatory or not, the impact thereof on the
ordinary man is to be determined i.e. whether owing
thereto, in his esteem, the person / goods referred to
would fall. In such determination, who has spoken the said
words, acquires significance. An ordinary person attributes
different meanings to the same words coming from
different persons. Thus, in assessing whether the words
are defamatory or not, the weightage which the person to
whom the said words are addressed, attaches to the
words of the speaker/author, acquires significance. I have
wondered what weightage an ordinary person attributes to
.
the words or to the advertisement of a competitor whose
interest lies in promoting its own goods vis-à-vis of other's
and whether such words/advertisements change the
opinion of the ordinary person qua the goods of another.
39. To my mind people generally recognise
advertisements for what they are: sales talk. A comparison
by trader ‗A' of his goods with those of trader ‗B' will not
be accepted by the public as the last word on the relative
merits of the two products; it will be seen as an attempt by
trader ‗A' to make more money. If the public are gullible
enough to fall for trader ‗A's' sales campaign, trader ‗B'
can easily counter with one of his own and the man with
better campaign wins until the public finds out how bad his
product really is. This is what fair trade competition is all
about.
40. Comparative advertising, in my opinion is perceived
as less credible and more aggressive or unfair than the
other modes of advertising. Thus the weightage given by
the ordinary man, qua whom the test of defamation has to
be applied, is very little if not insignificant to comparative
advertising. Only when the party making the statement is
not a trade rival or the statement is made in such a way or
in such circumstances that it might well be taken by the
reasonable consumer to be authoritative and reliable
statement of fact or possible expert opinion, instead of as
mere puff or sales- talk, is it capable of changing the
opinion of the consumer about any goods."
24. The issue which this Court has to decide by way of this
application is as to whether any case has been made out by the
applicant/plaintiff for grant of interim relief, as prayed for, during the
pendency of the suit? The offending Advertisement is at pages No. 42 &
43 of the paper-book. In terms of the same, the pack of the defendant-
company of 'NIHAR SHANTI AMLA' Hair Oil is stated to be available at
.
Rs.47/- for 175 ml., whereas the pack of the plaintiff-company of 'Dabur
AMLA HAIR OIL' is available at Rs.90/- for 180 ml. The tag line which is
mentioned in the Advertisement is "AUR QUALITY? AAP KHUD
AAZMA KE DEKHIYE". At this stage itself, this Court will again refer to
the judgment of the Hon'ble Supreme Court in Tata Press Ltd. Vs.
Mahanagar Telephone Nigam Limited and others (supra). In this
judgment, Hon'ble Supreme Court was pleased to hold that
advertisement is a part of 'commercial speech' and 'commercial speech'
is a part of the freedom of speech and expression guaranteed under
Article 19(1)(a) of the Constitution of India. Hon'ble Supreme Court has
further held that the restrictions which can be imposed on the
fundamental right guaranteed under Article 19(1)(a) of the Constitution
are contained in Article 19(2) of the Constitution itself and 'commercial
speech' which is deceptive, unfair, misleading and untruthful would be
hit by Article 19(2) and can be regulated/prohibited by the State.
25. As 'commercial speech' has been held to be a fundamental
right guaranteed under Article 19(1)(a) of the Constitution, interference
can be and protection to an aggrieved party can be, if the 'commercial
speech' is deceptive, unfair, misleading and untruthful.
26. Coming back to the Advertisement impugned, the
defendant is holding out that 175 ml. of Nihar Shanti Amla is available
at a price almost half at what 180 ml. of Dabur Amla is available. During
the course of arguments, learned Senior Counsel for the plaintiff has
.
not stated that this holding out being made in the Advertisement is
either misleading or untruthful. In other words, this holding out is stated
to be correct as per respective rate of the products of the plaintiff and
the defendant. Now, the question is as to whether the tag line "AUR
QUALITY? AAP KHUD AAZMA KE DEKHIYE" amounts to
disparagement or an innuendo or not? In other words, whether this tag
line belittles the product of the plaintiff or not? As per Black's Law
Dictionary, 'Disparagement of goods' is defined as a statement about a
competitor's goods which is untrue or misleading and is made to
influence or tends to influence the public not to buy. The definition of
'Puffing' as per Black's Law Dictionary is an expression of opinion by
seller not made as a representation of fact. Gulf Oil Corp. V. Federal
Trade Commission, C.C.A.5, 150 F. 2d 106, 109. Exaggeration by a
salesperson concerning quality of goods (not considered a legally
binding promise); usually concerns opinions rather than facts.
Advertising which merely states in general terms that advertiser's
product is superior is only "puffing" and is not actionable in action by
competitor. Smith-Victo Corp. V. Sylvania Elec. Products, Inc. III. 242 F.
Supp. 302, 308. Term also describes secret bidding at auction by or on
behalf of seller. Feaster Trucking Service, Inc. V. Parks-Davis
Auctioneers, Inc., 211 Kan. 78,505 P. 2d 612, 617.
27. There is nothing on record from which this Court can,
prima facie, come to the conclusion that the Tagline is either adversely
.
provoking the consumers of the plaintiff or the same in any way is a
negative connotation to suggest that the product of the plaintiff is
inferior. Neither the plaintiff has, prima facie, been able to prove that the
advertisement in issue reflects its product in a bad light or defame it
because the tag line neither refers to either of the product of the plaintiff
or the defendant nor it can be treated as an innuendo because there is
no oblique remark or hint therein suggestive of the product of the
plaintiff being inferior.
28. Section 29(8)(c) of The Trade Marks Act, 1999 reads as
under:-
"29(8) A registered trade mark is infringed by any
advertising of that trade mark if such advertising-
... ..... ....
(c) is against the reputation of the trade mark."
29. As far as the infringement of Section 29 of the Trade Marks
is concerned, this Court is of the considered view that it is a matter of
trial but, prima facie, the advertisement cannot be said to be against the
reputation of the Trademark of the plaintiff.
30. In terms of the orders which have been passed by various
Courts which have been relied upon by learned counsel for the parties
and which have been quoted by me in extensio hereinabove, whereas
in the world of Advertisement, puffing is permissible, however,
disparagement which amounts to belittling the product of the
.
competitors, is not permissible. In the present case the 'tag line' in the
considered view of this Court, prima facie, does not amounts to
disparagement, for the reason that it neither directly or indirectly either
belittles the product of the plaintiff nor it makes any adverse comment
on the quality of the product of the plaintiff. From the perspective of a
consumer, all that this Court can make out of the Advertisement is this
that the defendant is making an holding out to the public at large that its
product is cheaper than that of the plaintiff and thereafter it says that as
far as quality is concerned, it leaves it to the consumer to satisfy itself
as to which one is better. Incidentally, it is a matter of record that the
plaintiff has also issued an Advertisement which stands depicted in the
reply filed by the defendant/non-applicant, wherein, by holding out that
Dabur Anmol Gold Coconut Oil was available at Rs.30/- for 100 ml.,
whereas Parachute Coconut Oil was available at Rs.30/- for 100 ml., a
tag line is there "So when are you switching your coconut oil?". If the
Advertisement of the plaintiff, referred to hereinabove, does not
amounts to disparagement and does not belittles the product of the
defendant, then by the same yardstick, the plaintiff cannot claim that the
Advertisement of defendant amounts to disparagement or belittles the
product of the plaintiff or causes any innuendo. Therefore, this Court
has no hesitation in holding that, at this stage, the plaintiff has not been
able to make out a prima facie case or has been able to demonstrate
that the balance of convenience is in its favour for the grant of interim
.
relief. That being the case, it cannot be said that irreparable loss will be
caused to the plaintiff in case the interim relief, as prayed for, is not
granted to it during the pendency of the suit. Accordingly, the application
is dismissed. However, it is made clear that the observations made
hereinabove are only for the purpose of adjudication of the present
application and shall not have any bearing upon the adjudication of the
main suit.
(Ajay Mohan Goel)
Judge
July 28,2022
(bhupender/narender/rishi)
