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Karnataka High Court
EUREKA FORBES LIMITED, KOLKATA - Appellant
Versus
PENTAIR WATER INDIA PRIVATE LIMITED, GOA - Respondent
Decided On : 12-20-06
Miscellaneous First Appeal No. 6048 of 2006 connected with Miscellaneous First Appeal Nos. 6049, 6050 and 6051 of 2006 (CPC).
Cases Referred: 1990 Supp. (1) S.C.C. 727; 2004(29) PTC 1; A.I.R. 2005 Delhi 102; 2006(32) PTC 677 (Del.); 1999 PTC (19) 741; 2005(31) PTC 1; A.I.R. 1999 S.C. 3105; 2006 AIR SCW 4773; A.I.R. 1964 S.C. 993.
Trade and Merchandise Marks Act, 1958 - Section 48 - Slander - What amounts to - Rights and liabilities of manufacturer and competitors. Dilatory Settled Principles: (a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (b) He can also say that his goods are better than his competitors , even though such statement is untrue. (c) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors he can even compare the advantages of his goods over the goods of others. (d) He, however, cannot, while saying that his 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 manufacture 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. [1999 PTC (19) 741].
Cases Referred: 1990 Supp. (1) S.C.C. 727; 2004(29) PTC 1; A.I.R. 2005 Delhi 102; 2006(32) PTC 677 (Del.); 1999 PTC (19) 741; 2005(31) PTC 1; A.I.R. 1999 S.C. 3105; 2006 AIR SCW 4773; A.I.R. 1964 S.C. 993.
Trade and Merchandise Marks Act, 1958 - Section 48 - Advertisement - Issuing or circulating material defaming or maligning a product - No mention of name of product - Only mentioning technology used in making the product - Held, will have the effect of causing damage in respect of the product in question- Becomes actionable. [V. Jagannathan, J.]: Since the appellant s water purifier uses UV technology in its water purifier Aquaguard, certainly, the advertisement amounts to disparaging the produce that is sold by the appellant company. No doubt, as the trial court has observed that there is no specific mention of the name "Aquaguard" in the advertisement, nevertheless, the very use of the words UV technology in the advertisement certainly will have the effect of causing damage to the appellant s business. The disparagement though not specific in the sense that there is no mention of the word Aquaguard , yet, taken on the whole, the advertisement though appears to be generic in nature, still becomes actionable. Dilatory Settled Principles: Generic disparagement of a rival product without specifically identifying or pinpointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genre of a product within which a complaining plaintiff falls and raise a defence that the plaintiff has not been specifically identified. [AIR 2005 Del 102].
Cases Referred: 1990 Supp. (1) S.C.C. 727; 2004(29) PTC 1; A.I.R. 2005 Delhi 102; 2006(32) PTC 677 (Del.); 1999 PTC (19) 741; 2005(31) PTC 1; A.I.R. 1999 S.C. 3105; 2006 AIR SCW 4773; A.I.R. 1964 S.C. 993.
Injunctions - Temporary injunction - Grant of - Considerations for Court.
Cases Referred: 1990 Supp. (1) S.C.C. 727; 2004(29) PTC 1; A.I.R. 2005 Delhi 102; 2006(32) PTC 677 (Del.); 1999 PTC (19) 741; 2005(31) PTC 1; A.I.R. 1999 S.C. 3105; 2006 AIR SCW 4773; A.I.R. 1964 S.C. 993.
Code of Civil Procedure, 1908 - Order 39, Rules 1, 2 and Section 151 - Interference with discretionary order of trial court - Scope and ambit. Dilatory Settled Principles: The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversly or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court s exercise of discretion [1990 SCC Supp 727]. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue [2006 AIR SCW 4773].
Cases Referred: 1990 Supp. (1) S.C.C. 727; 2004(29) PTC 1; A.I.R. 2005 Delhi 102; 2006(32) PTC 677 (Del.); 1999 PTC (19) 741; 2005(31) PTC 1; A.I.R. 1999 S.C. 3105; 2006 AIR SCW 4773; A.I.R. 1964 S.C. 993.
All these appeals arise out of one and the same order passed by the IV Additional City Civil and Sessions Judge, Bangalore City, and, hence, common judgment.
2. The appellant, M/s. Eureka Forbes Limited, a public limited company, is the plaintiff in O.S. No. 15302 of 2006 and the said suit was filed praying for a decree of permanent injunction restraining the respondent, M/s. Pentair Water India Private Limited, the defendant from publishing, placing of advertisement or in any manner circulating or distributing any material defaming or maligning the plaintiffs product 'Aquaguard' or ' ‘UV purifier' or from issuing disparaging statements about the said Aquaguard or UV purifier, and also prayed for a decree of mandatory injunction directing the respondent-defendant to withdraw the advertisement, pamphlets or such other material containing the disparaging and false information relating to UV purifier and also for a direction to the defendant to public in the newspapers and media a statement that insofar as UV purifier is concerned, the assertion made by the defendant is not based on any scientific information. The appellant also filed applications as per I.A. Nos. I and II for temporary injunction against the defendant. An interim order was passed by the Trial Court on the said two I.As. in favour of the appellant and, after the appearance of the defendant and upon I.A. Nos. IV and V being filed by the defendant praying for vacating the ex parte ad interim order of temporary injunction, the learned Trial Judge heard the parties on all the four I.As. and passed the impugned order. I.A. Nos. I and II filed by the appellant came to be dismissed and ex parte ad interim order of temporary injunction was vacated thereby allowing I.A. Nos. IV and V filed by the defendant. Aggrieved by the said order, the appellant-plaintiff is before this Court.
3. The facts in brief which led to the impugned order being passed by the Trial Court on the I.As. filed can be stated as under:
The appellant's case is that, it is a pioneer and leader in UV water purifiers sold under the brand name "Aquaguard" and the appellant is a market leader in India and accounts for more than 70% of the market share in the UV purifier segment. It is its case that Aquaguard is India's first super brand water purifier enjoying the trust of over fifty million users and the appellant had an exclusive monopoly in the market over one and half decades. Later on, various other water purifiers in the UV segment and other segments were introduced into the market. But, still, the appellant continues to be the market leader enjoying a huge client base which includes some of the prestigious corporate houses, financial institutions, Government bodies, hospitals, etc. The appellant was also granted registration of trademark "Aquaguard" for the goods water purifiers.
4. It is the appellant's case that the water purification system developed by it and called as 'Aquaguard' employs UV (Ultra-Violet) technology and the five components of the purification process are:
(a) The Pre-filter;
(b) Solenoid valve;
(c) Activated Carbon Chamber;
(d) Ultra Violet Chamber; and
(e) The Electronic Monitoring System.
5. It is with this background, one will have to look at the advertisement given by the respondent and, according to the appellant, the advertisement issued by the respondent is not only false, but it disparages the product of the appellant's company. The advertisement issued by the respondent is as under:
"Water contains contaminants that are invisible to the naked eye and to your UV water purifier, and
Pentair's Home RO system with PXP removes contaminants as small as 0.0001 micron.... ".
6. It is this advertisement issued by the respondent-defendant that has led to the suit being filed and the relief sought as mentioned earlier. It is the specific case of the appellant that the above advertisement admittedly disparages UV technology and as the appellant has adopted UV technology, in
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