Comparative advertising is permissible as long as it does not denigrate the competitor's product.

( 1 ) IA No. 821/2006 is an application filed by the plaintiff under Oeder XXXIX Rule 1 and 2 of the Code of Civil Procedure (CPC) seeking ad interim injunction. On 25th January, 2006 ex-parte ad interim injunction was granted to the plaintiff. On service of this injunction order upon the defendant, the defendant immediately filed IA No. 1106/2006 under order XXXIX Rule 4 CPC for vacation of the injunction order dated 25th January, 2006. It is, in these circumstances, both the applications were heard together and are being disposed of by this common order.

( 2 ) THE question in these proceedings essentially is as to whether the advertisement of the defendant of its product under the trade name Mortein which is an insecticide is disparaging and1 denigrates the product of the plaintiff and on this ground whether the plaintiff can restraint the defendant from exhibiting such an advertisement on electronic media.

( 3 ) THE plaintiff company is engaged in the manufacturing and/or marketing variety of goods including coils, mats, liquid vaporizers (apparatus and refills), aerosols, oils sprays etc and destroying substances and preparations for insecticides. These products are produced and marketed under well known trademarks viz GOODNIGHT, JUMBO, HIT etc. I am concerned, in these proceedings, with the plaintiff s product traded under the trade name HIT. This product is produced by the plaintiff under two versions-one for killing cockroaches which is packed in a red colour can and other for killing mosquitoes which comes in a can with predominantly black colour. The defendant s product Mortein, on the other hand, as launched by it is meant for destroying both cockroaches and mosquitoes. Thus whereas for tackling cockroaches and mosquitoes, two different products of the plaintiff are. required the defendant s one version is sufficient for both types of insects. In the impugned advertisement, the defendant has highlighted this feature and added advantage of its product. However, the grievance of the plaintiff is that while boasting about this advantage, the defendant has attempted to denigrate the product of the plaintiff which is impermissible. The story board of the advertisement goes in the following sequence open with an army of roaches and mosquitoes marching The commander of the insect army is briefing the forces on the attack. The target is the family in the background. The army of roaches and mosquitoes charge towards the family. A MVO streams in as the lady of the house is contemplating the problem. The Black and Red Aerosol Cans are in front of her. Both the cans come together to morph into a Mortein Aerosol Can. The lady confidently picks up the new mortein Aerosol Can. The commander of the insect army quickly senses the danger and alerts other insects. The lady beings her attack by spraying mortein on the floor. The powerful effects of Mortein shown in the form of glowing arrowheads chase the roaches to their end. She then aims her Mortein at the swarm of mosquitoes above. The arrowheads chase the mosquitoes and finish them in no time. The last victim is the commanden, An arrow penetrates him. Pack shot super: Shaktishali Suraksha.

( 4 ) CASE of the plaintiff is that it is the market leader as it enjoys substantial share of the market in these products. Its insecticides for cockroaches and mosquitoes are well known, because of its volume of sale as well as advertisement, to the public at large. Therefore, people are aware that the two variants of the product marketed by the plaintiff are in red and black cans. Therefore, while showing the predicament of the lady in the advertisement that two cans of red and black colour to tackle the onslaught of mosquitoes and cockroaches from two sides the intention is to depict that the problem cannot be tackled with the products of the plaintiff. Thereafter, solution is suggested by morphing the two products into one from where the defendant s product emerges. Therefo