TMI Blog2006 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... of the products manufactured by the plaintiff is Dabur Honey. According to the plaintiff it has an annual turn over of about ₹ 50 crores in respect of this product and promotional expenses in this regard are to the tune of about Rs .3.4 crores. 6. The plaintiff says that its honey is sold in bottles of various sizes and it has acquired a design registration of its bottle under the provisions of the Designs Act and this bears Design No. 177843 with effect from 1998. The plaintiff says that it has a market share of more than 50% in branded honey. 7. The Defendant also manufactures and markets honey under its brand name Wipro Sanjivani. According to the plaintiff, the Defendant started airing a TV commercial in respect of its product with a view to disparage and denigrate the plaintiff's product. Of course, it is not possible to precisely indicate the details of the commercial but according to learned Counsel for the plaintiff the total visual impact and the voice over of the commercial are important as are the first few frames in which one Mrs. Paradkar is shown holding a bottle of honey, which is in fact the plaintiff's bottle (without the label) and the voice ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible. (e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation. 12. What is really relevant for the present purposes are conclusions (d) and (e) mentioned above, which effectively mean that an advertiser can say that his goods are better than his competitors but he cannot say that his competitor's goods are bad because that would amount to slandering or defaming the competitor and its goods, which is not permissible. But if there is no derogatory reference at all to the goods or to the manufacturer, no action lies against that advertiser. In that case, the High Court concluded that in the advertisement, the competitor's product was stated to be of an inferior quality. 13. The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This was held to be disparaging the plaintiff's product and an injunction was granted against airing the advertisement. The learned Single Judge reiterated the principle that while praising its product, an advertiser cannot describe the competitor's product as inferior, thereby damaging its reputation. 17. Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr. was a case decided by the Division Bench of this Court in which it held that to decide the question of disparagement, the following factors have to be kept in mind: - (i) intent of the commercial; (ii) manner of the commercial; (iii) story line of the commercial and the message sought to be conveyed by the commercial. 18. After considering the offending advertisement in its entire perspective, the Division Bench held that the message conveyed by the advertisement disparages the product of the competitor. 19. Learned counsel for the Defendant did not dispute the conclusions arrived at in these decisions to the extent that an advertiser cannot disparage the goods of its competitor and hope to get away with it. However, while relying upon Reckit Benckiser (India) Ltd. v. Naga Ltd. and Ors. 104(200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ? while comparing two products, the advertised product will but naturally have to be shown as better. The law, as accepted by this Court, is that it is permissible for an advertiser to proclaim that its product is the best. This necessarily implies that all other similar products are inferior. 23. In comparative advertising, a consumer may look at a commercial from a particular point of view and come to a conclusion that one product is superior to the other, while another consumer may look at the same commercial from another point of view and come to a conclusion that one product is inferior to the other. Disparagement of a product should be defamatory or should border on defamation, a view that has consistently been endorsed by this Court. In other words, the degree of disparagement must be such that it would tantamount to, or almost tantamount to defamation. In the present case, the overall audio-visual impact does not leave an impression that the story line of the commercial and the message that is sought to be conveyed by it is that Dabur Honey is being denigrated, but rather that Wipro Sanjivani Honey is better. 24. Learned counsel for the Defendant objected to the use ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
