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2. The case of the plaintiff is that, it entered the confectionery market during the year 2002 and has developed a very wide market and high turnover during the years. It is claimed that the defendant Company is also engaged in production of confectionery items. The plaintiff's toffees include Candyman Fruitee Fun, Candyman Eclairs, Candyman Cofitino, Candyman Licks, Candyman Choco Double Eclairs, Candyman Mango Licks, Candyman Natkhat Gowawa and Candyman Lacto Crhme centre.

3. During the year 2009, according to the plaintiff, the defendant which is also a major confectionery came up with an advertisement, wherein, apart from claiming that their Nutrine Maha Lacto is only Asli Lacto meaning real lacto, the advertisement further disparages the product of the plaintiff in as much as the picture of the toffee in the defendant's advertisement matches the colour scheme of the plaintiff's toffee Lacto Crhme Center and the same is depicted as fake toffee or a dupe.

4. According to the plaintiff, the defendant is not entitled to claim that their product alone is a true product and the others are fake in an advertisement. It is also contended that the defendant cannot disparage the product of the plaintiff by using a toffee which is substantially similar to that of the plaintiffs toffee and claim that it is a fake Lacto Toffee. On the above contentions the plaintiff would seek for relief of injunction set out in the suit.

5. Though, upon service, the defendant appeared through counsel, it is found that no written statement was filed and the defendant was set exparte on 14.02.2017. Thereafter, the matter was referred to the learned Additional Master for recording evidence. Before the learned Additional Master one Ashutosh Modi, an Employee of the Plaintiff was examined as PW1, he had produced the documents referred to in the plaint as Exs.P1 to P8. The print out depicting the frame by frame advertisement of the defendant is filed as Ex.P2. The print out depicting the advertisement of the plaintiff in respect of its Candyman Lacto Crhme Centre toffee frame by frame is filed as Ex.P3. The plaintiffs toffee wrapper has been filed as Ex.P4. The Compact Disk containing the disparaging advertisement has been filed as Ex.P7. The Compact Disk containing the advertisement of the plaintiff in respect of its Candyman Lacto Crhme centre toffee is filed as Ex.P8.

6. A perusal of the above documents as well as the evidence of the plaintiff would show that the claim of the plaintiff that there is an attempt by the defendant to disparage the plaintiffs product as fake and also to claim that its lacto toffee is only the real lacto toffee.

7. Miss.Durga Bhatt, learned counsel appearing for Mr.Arun C.Mohan, learned counsel for the plaintiff would rely upon the judgment of this Court in Colgate-Palmolive (India) Limited Vs. Anchor Health & Beauty Care Private Ltd., reported in 2009 (40) PTC 653 (Mad.), wherein it was held that the usage of the words Only and First actually falls within the meaning of unfair trade practice under the provisions of the Consumer Protection Act,1986. It was concluded that such an act would tantamount to a false representation. After considering the law relating to disparaging advertisement in India, this Court had summed up the law as follows:

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Ex.P3 Printout depicting the disparaging advertisement telecast by the plaintiff in respect of their Candyman Lacto crhme center frame-by-frame.

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Ex.P4 Original specimen of plaintiff's Candyman Lacto crhme Center toffee wrapper and defendant's Nutrine Maha Lacto toffee wrapper.

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Ex.P5 Website printouts/ pictures of harboiled sugar toffees/ confectioneries manufactured by various manufacturers using the mark LACTO.

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Ex.P6 Series Trademark Search report for the mark LACCTO conducted on the official websites of Indian Trademark registry, the United States Patents and Trademark office and European Union Intellectual property office.