MADAN B. LOKUR, J. The Appellant manufactures and markets, among other things, a mosquito repellant cream under its brand name Odomos and Odomos Naturals. The Respondents also manufacture a mosquito repellant cream, but under the brand name Good Knight Naturals.

2. The Respondents telecast their advertisement/commercial of Good Knight Naturals mosquito repellant cream and according to the Appellant, the advertisement/commercial disparages its product.

3. The question that arises before us is this: Does the commercial telecast by the Respondents disparage the product of the Appellant and if so, whether the Appellant is entitled to an injunction against the telecast. In our opinion, the answer to the first question is in the negative. Consequently, the second question does not arise. To this extent, we confirm the view taken by a learned Single Judge in the impugned order.

4. The commercial in question is in Hindi but for convenience, the story board is reproduced below in Hindi (as it appears) and its translation in English.

5. The submission of the Appellant is that its product Odomos is an extremely popular mosquito repellant cream and it enjoys over 80% of the market share all over the country and in some parts of the country it enjoys a 100% market share. The sales of the Appellant’s product run into crores of rupees and the advertisement and promotion expenses also run into crores of rupees.

6. It is averred that the commercial of the Respondents’ product was telecast on a news channel on 8th October, 2009. We are told that it has appeared on several occasions thereafter. According to the Appellant, the commercial disparages its product and, therefore, the Respondent should be injuncted from further telecasting it. It is submitted that even though there is no direct or overt reference to the Appellant’s product, since the Appellant’s product enjoys a huge market share, the commercial is obviously targeting it. Serious objection was taken to the suggestion in the commercial that the Appellant’s product causes rashes, allergy and is sticky.

7. On these broad facts and submissions, the Appellant preferred CS (OS) No. 2029/2009 along with an application for injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure being IA No.13875/2009.

8. A learned Single Judge heard the injunction application and by the impugned order dated 4th December, 2009 expressed the view that the commercial does not fall within the tort of “malicious falsehood” and that it was not directed against the Appellant. The learned Single Judge, therefore, rejected the application for injunction and that is how the Appellant is now before us. 9. At the outset, we may state that there is a reference made by the learned Single Judge to the use of Citronella in the product of the parties and there was some debate before us whether “oil of Citronella” is harmful to the human skin or not. In our opinion, there is absolutely no need to get into this controversy because the commercial does not even remotely suggest anything about the use or otherwise of “oil of Citronella”. If we jump into this controversy, we would really be diverting our focus from the main issue in this case.

10. In Tata Press Ltd. v. MTNL & Ors., (1995) 5 SCC 139 (paragraph 25) the Supreme Court held that “commercial speech” is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. However, what is “commercial speech” was not defined or explained. In fact, it does not appear to be possible to clearly define or explain “commercial speech” and, in any event, for the purposes of this case it is not necessary for us to do so. The reason for this is that the Supreme Court has said in Tata Press Ltd. (paragraph 23 of the Report) that advertising as a “commercial speech” has two facets thereby postulating that an advertisement is a species of commercial speech. The Supreme Court further said as follows:-

“23