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10. In this background we have to determine (i) whether prima facie the respondents have disparaged the products of the appellants; (ii) whether the globe devise and the phrase "Yeh Dil Maange More" is copy rightable and if so whether this copy right has been infringed by the respondent; (iii) whether the essence of the roller coaster has been copied by the respondents and if so the affect of the same.

11. Firstly, we have to appreciate the commercial in which on the bottle the word "PAPPI" is written, whether it meant and stood for "PEPSI". From the visual it is clear that bottle is PEPSI though the word written is PAPPI. For arriving at this conclusion we are supported by three factors namely the actor i.e. the boy who is called from the audience is asked to give his preference of Cola drink. He mutters PEPSI in mutted manner but from movements of his lips, it can be seen he says PEPSI. Secondly, there are only three cola drinks i.e. PEPSI, THUMS UP and COCA COLA. The latter two belong to respondents, hence the bottle of Cola colour on which word "Pappi" is written has to be "PEPSI". Thirdly, the GLOBAL DEVICE and the colour scheme on that with the word PAPPI is that of the appellant. Hence, it can safely be concluded that the comparison in the commercial is with PEPSI. Now the question for consideration is whether the commercial by depicting that the boy preferred THUMS UP as against PEPSI because THUMS UP is strong drink while PEPSI is for children as children like sweet, amounts to disparagement or it is only a healthy competition and puffing the product of the respondents.

13. In the electronic media the disparaging message is conveyed to the viewer by repeatedly showing the commercial everyday thereby ensuring that the viewers get clear message as the said commercial leaves an indelible impression in their mind. To decide the question of disparagement we have to keep the following factors in mind namely; (1) Intent of commercial (ii) Manner of the commercial (iii) Story line of the commercial and the message sought to be conveyed by the commercial. Out of the above, "manner of the commercial", is very important. If the manner is ridiculing or the 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. Take for example the commercial which is at page 30 (Annexure A) filed with the plaint which describes "PEPSI" as a "Bachhon Wali Drink" and the same is mocked at in the commercial and the message is "that the kids who want to grow up should drink "Thums Up." The entire commercial advertisement is shown to convey that the kids should prefer "Thums Up" as against "PEPSI", which is sweet and meant for small children and not grown up boys. The commercial shows that the lead actor asks a kid which is his favorite drink. He mutters the word "PEPSI", which can be seen from his lip movement though the same is muted. The lead actor thereafter asks the boy to taste two drinks in two different bottles covered with lid and the question asked by the lead actor is that "Bacchon Ko Konsi pasand aayegi".? After taste the boy points out to one drink and says that that drink would be liked by the children because it is sweet. In his words he says. "Who meethi hain, Bacchon ko meethi cheese pasand hai". He discredited the drink one which according to him has a sweet taste. He preferred the other drink which according to him tastes strong and that grown up people would prefer the same. At that point, the lead actor lifts the lid from both the bottles and the one which is said to be strong taste reveals to be "Thums Up", and one which is sweet, word "PAPPI" is written on the bottle with a globe device and the colour that of the "PEPSI". Realizing that he had at the initial stage given his preference for "PEPSI" and subsequently finding it to be a drink for kids, the boy felt embarrassed. This embarrassment gesture he depicts by putting his hands on his head.

14. Second advertisement which appears at pages 35-45 (Annexure B) filed with the plaint is another commercial advertisement in which the star actor asks the audience. "Ek Sawaal do glass. Bacchoako konsi drink pasand aayegi?" As in the first commercial, in this commercial also the drinks are covered and one described as a sweet drink called "Bacchonwala" and the bottle comparing the Globe Device and the mark "PAPPI". Like in the first advertisement, in this also the boy covers his head with his arms and hands in the gesture of embarrassment. Then there is another commercial advertisement at pages 46-50 and at page 51 as Annexures C and D of the plaint. These two commercial advertisements are on the same line as the earlier one. The word "PEPSI" is uttered in muted way. Similarly the globe device and the mark "PAPPI" is used on the bottle. On the choice of the boy for Peppi i.e. Pepsi the lead actor mockingly says, "Wrong Choice Baby". In these commercials the bottle which resembles "PEPSI" and is referred to as "PAPPI" is termed as "Bacchon Wali". "Thums Up" is referred to as "Bado Ke Liye and Damdar Hai". Pepsi is projected to be a drink for kids, as it is "Sweet". These commercial through the electronic media, Mr. Kapil Sibal, Sr. Advocate contended disparage the goods of the appellant because by comparison, the respondents have tried to denigrate the product of the appellant in the eye of the young audience. Respondent projected Pepsi to be only a sweet drink hence of inferior quality. Mr. Kapil Sibal, Sr. Advocate then contended that by competitive advertisement the respondent could at best say that their Cola is better by giving reason but they couldn't denigrate appellant's Cola by calling it a sweet drink meant only for small children, and not meant for grown up. Hence, choice of the boy for PEPSI was said to be wrong amounts to disparagement. These advertisements by the respondents are not only made in mocking manner but in fact denigrate the goods of the appellant when the lead actor said "Wrong choice baby", and that the "Thums Up" is a right choice. The saying of the lead actor "Kyo Dil Maange No More" in fact depict the product of the appellant in poor and inferior form.

18. In one of the commercial the lead actor appears on the screen and asks two boys to come on the stage and point out their favorite drink. One of the boy indicated his preference by mouthing of the word "PEPSI". He was asked by the lead actor to taste the drink from both the bottles which were covered by the glasses. After taking a sip from each of the bottle, that boy gave preference of one over the other. When the reason for the preference was asked, the boy tells that one of them is a sweet drink meant for children and uses the word "Yen Meethi hein. Bachhon Ko Meethi Pasand Ahi" "Yen Bachhon wall hei" (it is sweet, children like sweets. It is meant for children). The moment it is said, the lid is lifted up by lead Actor from the bottles. The drink which the boy says "Bachhon wali" meant for children, on that it is written "PAPPI". The other bottle is of Thums Up. The comparison is in fact between Pepsi and "Thums Up". It can be seen from the fact that the bottle named as PAPPI is shown to certain Cola of Cola colour. The logo used in the commercial on that bottle consists of circular device and red & blue colour Along with the word PAPPI written underneath. That the respondent depicted the bottle with the mark "PAPPI" and the global device on it is a clear insinuation that the respondent is showing the product of the appellant i.e. PEPSI meant for children only. Though the actor mouthed the word "PEPSI" in a mute form yet from lip movement one can say he was uttering the word "PEPSI". It is an admitted case of the parties that there are only three Colas having Cola colour namely PEPSI, COCA COLA and THUMS UP, There is no other drink having Coia colour. The bottle of "PAPPI" which the advertiser showed has Cola colour, it is compared with "THUMS UP" which is owned by the respondents, who are also the manufacturer of "COCA COLA". Therefore, it cannot be said that the insinuation was against any other Cola other than "PEPSI COLA". The description of the bottle though with the name of "PAPPI" fits to be that of "PEPSI COLA". It cannot be said that the respondents were not comparing their product "THUMS UP" with "PEPSI COLA". As said by Justice Barin Ghosh in the case of Reckitt & Colman of India Ltd. (Supra) that one can boast about technological superiority of his products and while doing so can also compare the advantages of his product with those which are available in the market. He can also boast about the relative advantages of his own product over the other products available in the market. He can also say that the technology of the products available in the market has become old or obsolete. He can further add that the new technology available to him is far more superior to the known technology, but he cannot say that the known technology is bad and harmful or that the product made with the known technology is inferior. In the present case while comparing "THUMS UP" with PAPPI i.e. PEPSI, the respondents have tried to project to the customers that the appellants' product is not meant for adults or for grown-up children. "Young and growing children would not like PEPSI as it is sweet meant for children. Hence, of inferior quality. This by no stretch of imagination can be called a mere comparison or boasting of the superior technology of respondents. Rather this shows the product of the appellants in poor state and of inferior quality. No doubt by saying that it is a drink meant for children as such may not denigrate appellants' product but the manner in which the boy felt embarrassed when he is told that the drink for which he gave preference was not meant for grown up and strong children depicts the product of the appellant in low estimation and of less worth. It is nothing but denigrating the product of the appellants. The expression on the face of the boy indicates that being grown up he must not have given preference for PEPSI. The manner in which the commercial is shown and the way the actor puts his hands on his head feeling embarrassed is nothing but disparaging the products of the appellant. To say that a particular drink is "Bachhon Wali Drink" is one thing but to redicule the preference for Pepsi by action showing the boy feeling embarrassed after knowing his preference conveys a very serious message particularly when the lead actor says "wrong choice baby". This is a clear indication that the product of the appellants is inferior. The observation of the learned Single Judge that this comparison whereby Thums Up has been stated to be a drink for grown up is poking fun, to our mind, is not a proper appreciation of the commercial. Puffing does not mean one should denigrate the product of the competitor.