Himachal Pradesh High Court
Years vs Mahanagar Telephone on 28 July, 2022
Author: Ajay Mohan Goel
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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 3 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 4 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'.
::: Downloaded on - 28/07/2022 20:05:35 :::CIS 53. 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 6 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.::: Downloaded on - 28/07/2022 20:05:35 :::CIS 7
3. Dabur India Ltd. Versus M/s. Colortek Meghalaya Pvt. Ltd. 2010 SCC OnLine Del.391.
.
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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 8 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 9 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 10 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 11 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 12 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 13 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.
::: Downloaded on - 28/07/2022 20:05:35 :::CIS 1411. 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 15 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 16 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 17 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 18 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 19 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 20 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 21 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.::: Downloaded on - 28/07/2022 20:05:35 :::CIS 22
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.::: Downloaded on - 28/07/2022 20:05:35 :::CIS 23
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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 24 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‟.::: Downloaded on - 28/07/2022 20:05:35 :::CIS 25
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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 26 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 & ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 27 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 28 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.
::: Downloaded on - 28/07/2022 20:05:35 :::CIS 2927. 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 30 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 ::: Downloaded on - 28/07/2022 20:05:35 :::CIS 31 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) ::: Downloaded on - 28/07/2022 20:05:35 :::CIS