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6. Mr. Lall referred to the Advertising Standards Council of India ('ASCI') Code and, in particular, Clause IV which contains the Declaration of Fundamental Principles which require advertisements to observe fairness in competition "so that the consumer's need to be informed on choices in the market-place and the canons of generally accepted competitive behaviour in business are both served". He also referred to Clauses 4 and 6 of Chapter I of 'Standards of Conduct' as prescribed under the ASCI Code which mandated that advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions, contain statements or visual presentation which directly or by implication or by omission or by ambiguity or by exaggeration are likely to mislead the consumer about the product advertised. Further, Clause 6 mandated that "obvious untruths or exaggerations intended to amuse or to catch the eye of the consumer are permissible provided that they are clearly to be seen as humorous or hyperbolic and not likely to be understood as making literal or misleading claims for the advertised product".

35. It was repeatedly urged by Mr. Lall that comparison if at all should have been made by the Defendant with the Plaintiffs' most recent Colgate 'Total' which has 0.3% Triclosan. In response, Mr. Kaul pointed out that Pepsodent was focussing on the price segment where 100 gm of a tube of Colgate Strong Teeth is sold for Rs.37 whereas a similar quantity of Pepsodent GSP is sold at Rs.39. Mr. Lall did not deny that 70 gm of Colgate Total costs Rs.52 and, therefore, Colgate Total with 0.3% Triclosan was posititioned as a premium segment product. The attempt by the Defendant appears to be to offer a product with 0.2% Triclosan in the price segment of Rs.37 to 39. This perhaps explains why it has taken up Colgate Strong Teeth for comparison. The 'Super' on the packaging of Pepsodent GSP that it is superior vis-a-vis toothpastes not having anti germ actives does not preclude the Defendant from comparing, in the impugned advertisements, its product with one having anti germ actives and showing that its product is better than such a toothpaste as well. This Court is unable to discern at this stage any unfairness in this practice that may attract the clauses of the ASCI Code or even Section 30(1) (a) and (b) of the TM Act. It is also not possible, without further evidence being led in the matter, for the Court to come to a definite conclusion regarding violation of Section 17 (c) of the DACA by the Defendant.