The main legal point established in the judgment is that comparative advertising is permissible as long as it is not misleading, does not denigrate competitors' marks, and compares material, relevant, verifiable, and representative features.

I.A. 850/2015 [U/o. 39 Rules 1 & 2 CPC]

1. Present suit has been filed for permanent injunction restraining misleading and disparaging advertising, slander of the plaintiffs’ product, dilution, damages/ rendition of accounts, delivery up, etc.

2. Plaintiffs in the present suit have impugned the promotional campaign /advertising of the defendants wherein they have compared their product i.e. ‘Eveready LED Bulb’ with the plaintiffs’ product i.e. ‘Havells LED Bulb’ as according to the plaintiffs the same has resulted in disparagement and misrepresentation besides misleading the consumers. The advertisement that is impugned is reproduced here-in-below:-

“IMAGE”

3. Mr. C.M. Lall, learned counsel for plaintiffs stated that the statement in the impugned advertisement that “check lumens and price before you buy” was an invitation to consumers to compare only two attributes of a Bulb, i.e. lumens and price, as if they were the only two attributes relevant for determining the value of an LED Bulb. According to him, the impugned advertisement was a comparison of two products using selective and mischievous means to compare. He asserted that as the defendants’ impugned advertisement dealt with value and conveyed an impression that it offered better value for lesser price, it was obliged to compare all the relevant parameters. Mr. Lall submitted that in Tata Press Ltd. Vs. Mahanagar Telephone Nigam Limited and Ors., (1995) 5 SCC 139 the Supreme Court has held that „The “commercial speech” which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by the State.?

4. According to Mr. Lall, the impugned advertisement was no different than inviting a consumer to check only the size of a diamond in terms of carats and its price to determine its value when in fact the value of a diamond depends on 4Cs namely, cut, colour, clarity and carat weight. Hence, such a half truth could induce consumers to purchase a diamond of higher carats for a lower price and be misled into believing that they had got a good bargain.

5. Mr. Lall stated that even if the defendants’ product was superior in lumens, yet it was inferior in power factor (0.5 vs. 0.9) and over-all-life (15 vs, 25 years). He submitted that this information of superiority in one area and inferiority in two other areas had been cleverly portrayed to give an overall impression that defendants’ product was superior to the plaintiffs’. He pointed out that when it came to superiority in lumens, the advertisement made a comparison not just with plaintiffs’ product but also with other third party products, but when it came to power factor, the defendants shifted the comparison to one between its product (LED Bulb) and CFL bulb instead of the rival LED bulbs. He emphasised that ‘CFL Bulb’ was written in a very small font and was barely visible. He stated that price comparison was portrayed in such a manner as if the plaintiffs’ product was inferior on all fronts and yet was more expensive. He stated that it was this clever portrayal, which has been impugned as it was based on falsehood and half truth.

6. Mr. Lall submitted that all attributes connected to the value of the Bulb had to be fairly disclosed and not presented in a tricky manner or misleading way. He emphasised that the impugned advertisement would lead a reasonable person in the position of a buyer to a wrong conclusion. In support of his contention, he relied upon the Advertising Standards Council of India Code (for short “ASCI Code”). The relevant portion of the ASCI Code is reproduced here-in-below:-

“DECLARATION OF FUNDAMENTAL PRINCIPLES

IV. To ensure that advertisements observe fairness in competition so that the consumer’s need to be informed on choices in the market-place and the canons of generally accepted competitive behaviour in business are both served.

CHAPTER-I

4. Advertisements shall neither distort facts nor mislead the consumer by means of implica