The judgment establishes the principle that comparative advertising is permissible as long as it does not denigrate or defame the competitor's product, emphasizing the importance of the degree of disparagement in determining defamation.

MADAN B. LOKUR, J.

( 1 ) IA No. 608/2006 is an application filed by the Plaintiff under Order XXXIX rules 1 and 2 of the CPC in which it has prayed for an injunction restraining the Defendant from telecasting the impugned ?wipro Sanjivani Honey? TV commercial during the pendency of the suit.

( 2 ) BY an ad interim ex parte order dated 19th January, 2006, the injunction as prayed, was granted.

( 3 ) THE Defendant has since filed IA No. 2042/2002 for vacating the ad interim ex parte injunction. Both these applications are being disposed of by a common order.

( 4 ) THE Plaintiff is a manufacturer of a wide range of pharmaceuticals, toiletries and medicinal preparations including Ayurvedic medicines and formulations. The products of the Plaintiff are marketed under its registered trade mark ?dabur?.

( 5 ) ONE of the products manufactured by the Plaintiff is Dabur Honey. According to the Plaintiff it has an annual turn over of about Rs. 50 crores in respect of this product and promotional expenses in this regard are to the tune of about Rs. 3. 4 crores.

( 6 ) THE Plaintiff says that its honey is sold in bottles of various sizes and it has acquired a design registration of its bottle under the provisions of the Designs Act and this bears Design No. 177843 with effect from 1998. The plaintiff says that it has a market share of more than 50% in branded honey.

( 7 ) THE Defendant also manufactures and markets honey under its brand name wipro Sanjivani. According to the Plaintiff, the Defendant started airing a TV commercial in respect of its product with a view to disparage and denigrate the plaintiff s product. Of course, it is not possible to precisely indicate the details of the commercial but according to learned counsel for the Plaintiff the total visual impact and the voice over of the commercial are important as are the first few frames in which one Mrs. Paradkar is shown holding a bottle of honey, which is in fact the Plaintiff s bottle (without the label) and the voice over is to the effect that the bottle was purchased two years ago but it has remained the same (jaisi ki waisi ). In comparison one Mrs. Rao purchased Wipro sanjivani Honey, which got consumed almost immediately. The Plaintiff has annexed as Schedule I to the plaint relevant photographs of the commercial and learned counsel for the Defendant has shown the commercial to learned counsel for the Plaintiff as well as to me on a CD.

( 8 ) LEARNED counsel for the Plaintiff submitted that a consumer will recognise the bottle of honey with Mrs. Paradkar as that of the Plaintiff because of its distinctive shape and size for which it holds a design registration. Consequently, an unwary consumer watching the TV commercial is likely to be misled into believing that the product, shown in the commercial in poor light, is the product of the Plaintiff. It was submitted by learned counsel that the law does not require the product of the Plaintiff to be directly disparaged but even a disparaging insinuation is enough reason to injunct the Defendant.

( 9 ) LEARNED counsel for the Defendant refuted the submissions of learned counsel for the Plaintiff.

( 10 ) DURING the course of hearing of the injunction application on 14th, 16th, 17th and 20th March, 2006, learned counsel for the Defendant stated that in the commercial, in connection with the honey purchased by Mrs. Paradkar, his client is prepared to delete the reference to the two year period for which the honey was not consumed and replace it with an unspecified period. This concession on the part of the Defendant was not acceptable to learned counsel for the Plaintiff.

( 11 ) LEARNED counsel for the parties referred to several judgments on the subject, the first of them being a decision of the Calcutta High Court in reckitt and Colman of India Ltd. vs. M. P. Ramachandran and Anr. , 1999 PTC (19) 741. In that decision, the law on the subject is stated as follows: - (a) A tradesman is entitled to declare his goods to be best in

Click Here to Read the rest of this document