The main legal point established in the judgment is that comparative advertising is permissible as long as it is not misleading, does not denigrate or disparage a competitor's mark, and compares material, relevant, verifiable, and representative features of the goods in question.

JUDGMENT :

MANMOHAN, J.

I.A. 13793/2017

1. Present suit has been filed for damages and permanent injunction restraining infringement, disparagement and unfair trade practices against the defendant. With consent of the parties, I.A. No.13793/2017, filed under Order XXXIX Rules 1 & 2 CPC, was taken up for hearing and disposal. The prayer clause in the application is reproduced here-in-below:-

"A. The Defendant, its directors, principals, proprietors, partners, officers, employees, agents, distributors, franchisees, representatives and assigns be restrained by an ex-parte adinterim and interim injunction from:

(i) Issuing or otherwise howsoever, communicating to the public or publishing the Impugned advertisement or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the Impugned advertisement or any part thereof or any other advertisement of a similar nature to be published or broadcast or communicated to the public or published in any media including digital/electronic or social media or in any other manner disparaging the goodwill and reputation of the Plaintiffs and their products sold under the trade mark HORLICKS;

(ii) Using the depiction of the Plaintiffs' registered trademark HORLICKS or any other trademark or indication/product which is deceptively similar to that of the Plaintiffs' in its advertisement or in any other manner disparaging the goodwill and reputation of the Plaintiff and its product sold under the trade mark HORLICKS;

(iii) using any other indicia whatsoever to associate with/depict the Plaintiffs or their products in its advertisements issued in any and all media whatsoever including the electronic media;

B. Costs of the application be awarded to the Plaintiffs; and

C. Any other relief which the Hon'ble Court thinks fit and proper in the circumstances of the case be allowed in favour of the Plaintiffs and against the Defendants."

RELEVANT FACTS

2. The relevant facts of the present case are that plaintiff No.2, under license from the plaintiff No.1, has extensively used the mark HORLICKS in India since the past many decades and the revenue generated by the plaintiff No.2 in the year 2017 (Ten Months) was Rs.2668 crores and the expenditure on advertising and promoting the product HORLICKS for the same period was Rs.425 crores.

3. Further, the plaintiff No.1 is the registered proprietor of the trade mark HORLICKS in India under Classes 25, 28, 29, 30 and 32 of the Trade Marks Act, 1999.

4. It is averred in the plaint that on 11th November, 2017, it came to the plaintiffs” knowledge that that the defendant had published an advertisement for its COMPLAN branded product in the newspaper “Telegraph” (Kolkata as well as Patna Edition), which intentionally and deliberately disparaged the plaintiffs” health food drink product HORLICKS. The impugned advertisement is reproduced here-in-below:-

xxx xxx xxx

ARGUMENTS ON BEHALF OF THE PLAINTIFFS

5. Mr. Chander M. Lall, learned senior counsel for plaintiffs stated that the plaintiffs manufacture and market a health food drink under the trade mark HORLICKS which, as of October, 2017, had 43.9% market share in the 'Health Food Drinks' category. He stated that the impugned advertisement compared one cup of COMPLAN with two cups of HORLICKS and had a disclaimer at the bottom of the page, which stated that "One cup of Complan (33g) gives 5.94g of protein while two cups of Horlicks (27*2=54g) gives 5.94g of protein basis recommended pack dosage...." He stated that the disclaimer in the impugned advertisement was not an integral part of the advertisement and the font size of the super did not comply with the ASCI guidelines regarding font size requirements for a disclaimer.

6. Learned senior counsel for the plaintiffs contended that the impugned advertisement wrongly stated that the amount of protein in the defendant's product was doubl