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1999 Supreme(Cal) 184
High Court Of Calcutta
Ruma Pal, Malay Kumar Basu
RECKITT AND COLMAN OF INDIA LTD. - Appellant
Versus
JYOTHI LABORATORIES LTD - Respondent
Tender 601 Of 1999
Decided On : 04/19/1999
P.BOSH, P.CHINDAMBARAM, S.N.MUKHERJEE, SUDIPTA SARKAR
The court held that a plaintiff in an action for injurious falsehood must show that the offending advertisement referred to the plaintiff's product, that the representations disparaged the plaintiff's product and were untrue, and that the representations were intended to be taken seriously.
Headnote:
TORT - INJURIOUS FALSEHOOD - ADVERTISEMENTS - Whether the advertisement made false representations about the appellant's product - Whether the advertisement disparaged the appellant's product - Whether the advertisement referred to the appellant's product - Whether the balance of convenience lies in favour of the appellant.
Fact of the Case:
The appellant, a manufacturer of ultra marine indigo, filed a suit against the respondent, an advertising agency, for publishing an advertisement that allegedly disparaged the appellant's product. The advertisement showed a child's uniform with blue patches, which the child's mother attributed to the use of 'neel' (indigo). The advertisement then showed a lady in a white saree entering with a bottle of 'ujala', a whitening agent, which was praised as a superior whitening agent to 'neel'. The appellant claimed that the advertisement was directed to promote the respondent's product by deprecating the use of 'neel' and by deliberately misrepresenting the quality and efficacy of the appellant's product.
Finding of the Court:
The court held that the appellant had a prima facie case that the advertisement made false representations about the appellant's product, disparaged the appellant's product, and referred to the appellant's product. The court also held that the balance of convenience lay in favour of the appellant.
Issues: 1. Whether the advertisement made false representations about the appellant's product? 2. Whether the advertisement disparaged the appellant's product? 3. Whether the advertisement referred to the appellant's product? 4. Whether the balance of convenience lies in favour of the appellant?
Ratio Decidendi: 1. The court held that the appellant had adduced some positive evidence to show that the representations made in the advertisement were untrue, and that the evidence adduced by the respondent did not support their representation about blue. 2. The court held that the advertisement disparaged the appellant's product by saying that 'neel' left ugly blue patches on clothes and that it 'failed' as a whitening agent. 3. The court held that the advertisement could be said to refer to the appellant's product because a large percentage of the persons interviewed in a survey thought that the advertisement referred to the appellant's product. 4. The court held that the balance of convenience lay in favour of the appellant because the appellant had a considerable reputation and goodwill that would be affected by the advertisement, and the damage would be irreparable and impossible to quantify in terms of money.
Final Decision: The court vacated the order under appeal and revived the order dated 30th March 1999, which restrained the respondents from advertising their product in a manner that disparaged the appellant's product.
( 2 ) THIS is the third round in a tussle between the respondent No. 1 and the appellant with regard to the advertisements issued by the respondent No. 1 to promote its product. The first was in respect of a printed advertisement which was in Bengali. The Advertisement gave reasons why neel should never be used. This advertisement was the subject matter of a suit in this court. An exparte interim order was passed restraining the publication of the advertisement. This was confirmed after the filing of affidavits on 24th March, 1998. According to the respondent No. 1, pursuant to this order that particular advertisement was not being published in the earlier manner. According to the appellant even in its present form the advertisement continued to disparage the appellant's product.
( 3 ) THE second round was in respect of a television commercial which also, according to the appellant, denigrated its product. The appellant filed a compliant under section 36b of the Monopolies and Restrictive Trade Practices Act, 1969 (referred to as the Act) before the MRTP Commission, New Delhi. The Commission initially granted an exparte order of injunction restraining the publication of the offending advertisement. This was vacated after the filing of statements and hearing the parties. An appeal was preferred before the Supreme Court under section 55 of the Act which was dismissed summarily.
( 4 ) THE subject matter of this appeal is in respect of a third advertisement. The offending advertisement is a commercial in Hindi and is broadcast on television. Briefly the story bourd shows that 'neel' leaves blue patches on a child's uniform which subjects the child to ridicule in his school. He is tauntingly called "dhabba Master" by the other school children. According to the appellant "dhabba" in Hindi means patch or stamp and is an obvious reference to the blue patches on the white shirt. The child complains to his mother. His mother is in despair with the effect of "neel". A lady in a dazzling white saree then enters with a bottle of "ujala" to the accompaniment of a jingle which praises "ujala" as a whitening agent. The commercial then shows a scientist saying that "ujala" dissolves in the water which brings, such whiteness to clothes which neel can never achieve. The next shot shows the mother holding up the child's shirt exclaiming on its new colour of whiteness. The next few shots show several children in white uniforms participating in a flat race. The child wins. Finally the child says that in whiteness Ujala was first, while the mother says that Neel 'failed'. According to the appellant, the commercial was directed to promote the product of the respondent No. 1 by deprecating the use of neel and by deliberately misrepresenting the quality and efficacy of the appellant's product.
( 5 ) ON the allegation that the respondent No. 1's third advertisement as well as the altered form of the first advertisement denigrated the appellant's product, the appellant filed a suit in this court. In its interlocutory application it has claimed an injunction against the respondents from advertising "ujala" in a manner which disparaged the appellant's product. An ad-interim order was passed on 39th March, 1999 restraining the respondents from advertising their product in a manner which made may disparaging reference to the appellant's product. This interim order was vacated at the instance of the respondent No. 1 before the filing of an affidavit on 7th April, 1999 on the ground that "the quality of the plaintiff's product has not been specifically disparaged in
