(1.) THE plaintiff founds this action in passing off on the first defendant, allegedly copying the plaintiffs slogan in the second-last frame of the plaintiffs television commercial relating to its Horlicks health food drink powder. The plaintiff says that the slogan being the most prominent feature of its commercial, which is also the theme used in danglers and other promotional material used by the plaintiff, it has come to be so exclusively associated with the plaintiffs product that any form of imitation thereof by any other person would amount to deceit for filching the trade and trading upon the goodwill of the plaintiff and its renowned product.

(2.) THERE appears to be little doubt that the plaintiffs is a well-known product. The first defendant has not contested either the plaintiffs or its said products reputation. The plaintiff shows-and there is no reason to disbelieve the plaintiff-that it has expended several tens of crores in its advertisement campaign in which the punch-line in the television commercial is the most recognisable feature. The plaintiffs impressive turnover and the substantial sales figures of its Horlicks product also remain unquestioned at this stage.

(3.) THE plaintiff does not complain of the television commercial that the first defendant has hit upon in connection with its competing product by the name of Pediasure. The plaintiffs grievance is limited to the last frame of the first defendants commercial and, in particular, to the three superlatives used therein. These, the plaintiff alleges, are so closely resembling the three comparative adjectives in the second-last frame of the plaintiffs commercial that it would lead to confusion in the sense that a viewer would associate the first defendants product with the plaintiff or form an impression that Pediasure came from the same stable as Horlicks.

(4.) THIS species of passing off, exhorts the plaintiff, is recognised in a judgment reported at (1981)1 All ER 213 (Cadbury Schweppes Pty. Ltd. and ors. v. Pub Squash Co Pty. Ltd.) and the plaintiff asserts that it founded the present action on the basis of the law as recognised in such judgment. In that case the Privy Council, while considering an appeal from a decree in an action for passing off and unfair trading delivered by the Supreme Court of New South wales, accepted the position that if a party in promoting its product confused or deceived the market by conveying an element of association with a product of another it would amount to passing off. Such case also involved the adoption by the defendant in the action of an advertising campaign based on themes and slogans closely related to those which the plaintiff had developed and made familiar to the market in radio and television advertisements the Privy council approved a century-old principle that misrepresenting ones goods as the goods of some one else was not a separate genus of actionable wrong but a particular species of a wrong included in a wider genus.

(5.) THE law enunciated by the Privy Council recognised that the tort is no longer anchored to the name or trademark of a product or business, it is wide enough to encompass other descriptive material such as slogans or visual images or advertising campaigns. The test, it was found, was whether the product had derived from the advertising a distinctive character which the market recognised.

(6.) THE plaintiff says that it called upon the first defendant to desist from continuing the telecast of the first defendants commercial carrying the same exit theme in early April, 2008 and received a reply only in end-June, 2008. The plaintiff says that its commercials have been broadcast since June, 2005, that the plaintiff noticed in February, 2008 that the first defendant had launched a campaign with a deceptively similar exit frame, that the first defendants campaign was put on hold for sometime lulling the plaintiff into believing that it had been abandoned arid was only rein