Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2013 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (11) TMI 750 - HC - Companies LawInterim Injunction under order 39 Rule 1 and 2 of Civil Procedure Code – telecast of a television commercial of defendant’s Lifebuoy Soap, which as per the plaintiff is disparaging and denigrating the reputation and goodwill of the plaintiff in the commercial market. - Held that:- Ad interim relief as to the injunction was granted to the plaintiff and as against the defendant thereby restraining the defendant from telecasting the impugned advertisement - the defendant will be well within its rights to telecast the same only after following the conditions of the judgment - Defendant was also restrained from inserting or adding any such kind of piece/feature in the advertisement which would otherwise directly or indirectly result in disparaging the said product of the plaintiff till the final disposal of the case. It was clear that the advertisement disparages the plaintiff's antiseptic liquid and it was not an advertisement which seeks merely or only to promote the superiority of the defendant's “LIFEBUOY’ soap over an ordinary antiseptic liquid - When the commercial was displayed before the public at large, the basic principle that was followed was that the public tried to find the connectivity and the impact that advertisement probably creates on them - Dabur India Lmt V. Colgate Palmolive India Ltd. [2004 (9) TMI 603 - DELHI HIGH COURT ] - If “X’ would raise the standards of its product by claiming the rivals products “Y’ to be bad and not effective displaying similar/ comparative attributes of the two, the same would be bad in law - If it were a case of mere promotion of superiority of the defendant's product, alone, the plaintiff would not have had a case as that would have only betokened a permissible "better" or "best" statement - The advertisement comprises of two parts; one which denigrates and disparages the product of the plaintiff and the other which promotes the purported superiority of defendant's LIFEBUOY soap. There was a hint of some malice involved in the commercial in respect of the defendant’s product - indeed, it would be appropriate to delete certain relevant attributes of the defendant’s advertisement which clearly hits on the plaintiff’s product and portrays the same in bad light - Without a doubt comparative advertising was beneficial as it increases consumer awareness and therefore, it was 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 - Denigrating or causing direct harm to one’s product which has attained appreciation in its genre in terms of usage and application, would amount to slander, which would also cause great prejudice to the public interest, as the question is not of deciding which product is better, but also of public awareness - Because, misleading and disparaging advertisement would not only mellow down the faith of the public but would also result in misleading them. Whether the advertisement merely puffed the product of the advertiser, or in the garb of doing so, was denigrating the product of the plaintiff - It was palpable to state as per the assertions made by the plaintiff and the aforesaid discussion, it was clear that the advertisement aims at denigrating the product of the plaintiff by indicating to existing and future customers that the product of the plaintiff was ineffective - A significant aspect of the manner in which puffery should be interpreted in the case was the broadly liberal attitude adopted towards untrue and imprecise statements - The emphasis of the Court in this regard was to prevent any loss or injury to the interests of the competing manufacturer or seller, with any active disparagement of a competing product being impermissible. Based on the triple test for the grant of ad-interim injunction viz (1) whether the plaintiff has strong prima facie case to succeed on merits (2) whether the balance of convenience lies in favour of the plaintiff and (3) whether the plaintiff will suffer irreparable loss and injury if the injunction was not granted in its favour - the court finds that all the three principles lean in favour of the plaintiff and against the defendant - The plaintiff had been able to established a prima-facie case in its favour - If the plaintiff was not granted interim injunction, the telecast of the television commercial by the defendant in the aforesaid manner definitely pose disparagement against the plaintiff’s product, and was definitely detrimental to plaintiff’s interest and would also cause an irreparable loss and injury to the plaintiff - The balance of convenience also lies in favour of the plaintiff and against the defendant. The defendant can telecast the advertisement only after deleting the attributes as to remove the “toys’ in the advertisement - remove the phrase “two dhakkans” and the particular portion featuring the lady shown pouring liquid in the bucket by holding the bottle of the antiseptic liquid in her hand - Remove the shot showing the cloud formation - green was the colour majorly associated with “Dettol’, therefore also change the colour scheme showing the comparison between the two products in the television commercial and change the green colour to a different shade.
|