The central legal point established in the judgment is the assessment of disparagement of goods in the context of trademark infringement and passing off, emphasizing the perspective of the average consumer and the use of a Venn diagram to demonstrate the absence of disparagement of the plaintiff's products.

Badar Durrez Ahmed, J.

1. The plaintiff seeks an injunction restraining the defendant from telecasting an advertisement, a story board of which has been filed at page 1 of the list of documents filed Along with the plaint, on the ground that it disparages the goodwill and reputation of the plaintiff and its product sold under the trademark HARPIC.

2. The impugned advertisement is in respect of the defendants toilet cleaner which is sold under the mark DOMEX. According to the plaintiff, the impugned advertisement, while promoting the defendants said product DOMEX, disparages and rubbishes blue liquid cleaners and, thereforee, is also directed against the plaintiffs toilet bowl cleaner which is sold under the mark "HARPIC" and is blue in colour.

3. According to the plaintiff, its product "HARPIC POWER" and now the newly introduced "HARPIC POWER OPTI-THICK" are blue acid-based cleaners. On the other hand, the defendants DOMEX cleaner is a bleach-based cleaner and is translucent / white. It is contended on behalf of the plaintiff that acid-based cleaners can have a colour inasmuch as colour dyes are stable with acids. However, bleach-based cleaners, not being stable with colour dyes, cannot have a colour such as blue. It is further alleged that the plaintiff has three other acid-based products under the HARPIC mark which have the colours - red, yellow and green. The plaintiff also has a bleach-based product, with which we are not concerned in the present case. The defendant has no acid-based cleaners. Consequently, the defendant does not have any toilet bowl cleaner in any colour other than translucent / white. It was further contended on behalf of the plaintiff that the HARPIC toilet bowl cleaner constitutes virtually 80% of the market of toilet bowl cleaners and out of this, their blue toilet cleaner has a 72% market share, while the cleaners in the other three colours - red, yellow and green constitute only 8%. It is submitted that apparently consumers have a preference for the colour blue. It was also contended that the majority of acid-based cleaners are blue in colour and that acid-based cleaners are generally recognised as blue. It was further contended on behalf of the plaintiff that acid-based cleaners constitute 92% of the market and bleach-based cleaners comprise of only 8% of the market.

4. The learned Counsel for the plaintiff submitted that DOMEX is a new product compared to the plaintiffs product HARPIC and the defendant is trying to increase its market share. He submitted that the colour blue is an identifier and it distinguishes between acid-based cleaners and bleach-based cleaners. Since the plaintiff has the major market share of acid-based cleaners, any attack on blue cleaners would constitute an attack on the plaintiff. It was, thereforee, submitted that the impugned advertisement, inasmuch as it disparages and denigrates blue liquid cleaners, as a class, denigrates the plaintiffs product.

5. It was also contended by the learned Counsel for the plaintiff that a toilet bowl cleaner must have two attributes - (1) germ killing; and (2) stain removing. He submitted that in this context, viscosity of the cleaner is an important consideration. If the cleaner has a low viscosity and is, thereforee, watery and too thin, it drains away rapidly and does not have sustained germ killing and stain removing ability. On the other hand, if the toilet bowl cleaner has a high viscosity and is thick, it would have a higher germ killing and stain removing capability. At the other end, however, if the toilet bowl cleaner is too thick, it wont spread and, thereforee, would not cover the entire toilet bowl. Consequently, while thicker toilet bowl cleaners having a higher viscosity are better and preferable to thinner and watery toilet bowl cleaners, the viscosity is critical inasmuch as it should not be too viscous.

6. The learned Counsel for the plaintiff submitted that the impugned advertisement is directed against thin a