The court emphasized the need to grant some latitude to advertisers in designing and crafting their pitch to consumers, and highlighted the importance of considering the intent, manner, storyline, and overall effect of advertisements in cases of disparagement and comparative advertising.

RAJIV SAHAI ENDLAW, J.

IA No.2129/2013 in CS(OS) No.246/2013 & IA No.2745/2013 in CS(OS) No.319/2013 (both of the plaintiff under Order 39 Rules 1&2 of the CPC).

1. The plaintiff in these two suits for permanent injunction restraining the defendant from broadcasting, printing and publishing advertisement of its product cooking oil under the brand name FORTUNE, averred by the plaintiff to be disparaging the goodwill and reputation of the plaintiff’s product, also a cooking oil in the brand name SAFFOLA, and for damages, claims interim injunction restraining the defendant from publishing, printing, airing, broadcasting the impugned advertisement.

2. CS(OS) No.246/2013 with respect to advertisement on television came up first before this Court on 8th February, 2013 when summons/notice thereof was issued. The plaintiff soon thereafter instituted CS(OS) No.319/2013 with respect to advertisements in the Print Media and summons/notice thereof was also issued on 18th February, 2013. The counsels for the parties were heard for the purpose of interim relief from 25th February, 2013 till 18th March, 2013 when orders on these applications were reserved.

3. It is the case of the plaintiff:-

(i). that the plaintiff and the defendant are competitors in the cooking oil segment;

(ii). that the plaintiff’s cooking oil sold under the Trademark SAFFOLA is a blended oil sold in four variants with composition (a) of SAFFOLA GOLD of 80% Refined Rice Bran Oil (RBO) and 20% of Refined Safflower Seed Oil; (b) of SAFFOLA TASTY of 60% Refined Corn Oil and 40% of Refined RBO; (c) of SAFFOLA ACTIVE of 80% of Refined RBO and 20% of Refined Soybean Oil; and, (d) of NEW SAFFOLA of 60% of Refined Safflower Seed Oil (Imported, High Oleic) and 40% of Refined RBO;

(iii). that the defendants product Fortune RBO is claimed to be composed only of RBO;

(iv). that the plaintiff’s product SAFFOLA has been disparaged by television commercials and print advertisements issued by the defendant by making patently false, unsubstantiated and misleading claims and statements in respect of Fortune RBO as being, (a) the “healthiest oil in the world”; (b) healthier than the plaintiff’s SAFFOLA brand edible oil; (c) 100% RBO being 100% healthy; and, (d) good not only for the heart, but also good for cholesterol immunity, skin and harmones;

(v). that the disclaimers purportedly made in the advertisement of the defendant’s being not visible, being vague and factually incorrect and misleading;

(vi). the advertisements directly compare the defendant’s product with the plaintiff’s product in a malicious manner;

(vii). that the advertisements are unfair, disparaging and cause irreparable harm and damage to the reputation and standing of the plaintiff;

(viii). that the false and misleading health claims and statements in the advertisement are prima facie unlawful, being violative of the Food Safety and Standards Act and Rules;

(ix). that the impugned advertisements are not in fair competition;

(x). that the advertisements aforesaid have been published by the defendant to gain an unfair advantage over the plaintiff by dishonestly misleading the consumers of the plaintiff into believing that RBO is the healthiest oil in the world and the plaintiff’s product which is a blend of RBO and Safflower Seed Oil/Corn Oil/Soya Bean Oil being less efficacious as it does not contain 100% RBO;

(xi). that the claims of the defendant in the advertisement being without any reference to any research or scientific study;

(xii). that the claims of the defendant in its advertisement being also violative of Section 24 of the Food Safety and Standards Act, 2006;

(xiii). that the advertisement is comparative in nature and puffs up the product of the defendant without any basis.

4. The senior counsel for the plaintiff has argued:-

(a). that the judgments of the Courts have though held puffing up of own product in advertisements to be not bad but only so long as it does not disparage the product of another