The main legal point established in the judgment is the distinction between permissible puffing of one's own products and actionable disparagement of a rival's goods, emphasizing the requirement of a false and injurious statement about a product, which deceives or has the capacity to deceive consumers and causes material deception.

Surinder Singh Nijjar, CJ.:

This appeal is directed against the judgment of the learned Single Judge G.A. No. 3352 of 2004 in C.S. No. 235 of 2004 dated 27th October, 2006. By the aforesaid judgment the learned Single Judge 'has confirmed the ad interim order of injunction passed 'on September 3, 2004. The ad interim order of injunction was granted in terms of Prayar (b) which is reproduced hereunder:

"(b) Perpetual injunction restraining the defendant No.1 and its servants, agents or assigns from publishing any advertisement similar or substantially similar to the advertisement published in Ananda Bazar Patrika being Annexure "E-1" hereto and from continuing to telecast or causing to be telecast only further the advertisement/publicity similar to or substantially similar to the advertisement mentioned in paragraph 13 hereof, a copy whereof is Annexure "E-1" hereto or containing any comparison with Brand 'H' of any brand referring to HORLICKS directly or indirectly."

2. The plaintiff claims that amongst the nutritional and healthcare products manufactured and sold by the plaintiff, one of the most. popular products is 'Horlicks', a health food drink which has been selling in India and several other countries tike U.K., Malaysia, Hong Kong, Australia, South Africa and Singapore for well over 100 years. 'Horlicks' is the leading brand in the health food drinks market in India and is well known both for its quality and long standing reputation. It is also claimed that 'Horlicks' is the leader in the health food drinks market commanding, as recently as April 2004, over 50% of the all India market, 69.2% of the West Bengal market and 53% of the South India market.

3. The plaintiff has filed the suit against the first defendant for illegal disparagement of its goods. It is also the case of the plaintiff that the disparagement is being continued on the electronic as well as print media through the active co-operation of the other defendants.

The advertisement complained of runs on the following lines.

(i) The advertisement starts off by showing a school bus and kids rushing to get in to it. The TV advertisement first shows one school boy laughing, then shows two girls laughing and finally shows all the school children laughing at the attempt of one school boy hanging from the central bar in the bus apparently in a desperate bid to gain some height.

(ii) A smart school boy walks up to the boy hanging from the central bar in the bus who is being laughed at and ridiculed by all other school children.

He is advised by the smart boy to ask his mother to give him Complan which is necessary for growing up (growing tall).

(iii) Two cups are then projected - one murky brown cup with 'Brand H' written thereon and the other pure and extra white cup with 'Coniplan' written thereon. In the background of the TV frame there is scale shown behind the murky brown cup of Brand H. A white coloured liquid is poured into the Brand H cup while a brown coloured liquid is poured into the white coloured Complan cup. There is a visual depiction of the Complan cup growing in height and becoming almost double the height of the Brand H cup, which registers nil growth.

(iv) While this visual depiction of extra growth is being shown for the Complan cup as compared to the Brand H cup, there is a voice over which strongly and emphatically Claims that Complan has 100% more milk protein than Brand H ......23 vital nutrients that give extra growing power.

(v) The advertisement proceeds to show the same boy, who had been previously hanging on the central bar of the bus, laughing and vaving his hand. He is asked by the same smart boy as to whether his mother has started giving him Complan. He replies in the affirmative and compares the increase in his height to his friend and finds that he is as his friend. He proudly declares that he too now was a Complan boy.

(vi) The Complan TV advertisement ends on the note 'Complan, extra growing power, enjoyable taste'."

4. Accordin