The judgment establishes that comparative advertising is permissible as long as it does not denigrate the product of the competitor. It also affirms the copyrightability of advertising catchphrases and the protection of copyrighted works from literal imitation.

JUDGMENT :

Usha Mehra, J.

"Frivolity has become a serious business these days. Television commercials which are meant to portray a stylization of the good life are crafted with great care, using all the skills that the arts and psychology have produced."

2. The vast majority of the viewer of the commercial advertisement on electronic media are influenced by the visual advertisements as these have a far reaching influence on the psyche of the people, Therefore, discrediting the product of a competitor through commercial would amount to disparagement as has been held by the High Courts and the Supreme Court of India as well as the Law laid down by Courts in U.K. & U.S.A. KERLY'S LAW OF TRADE MARKS AND TRADE NAMES BY DAVID KITCHIN AND ANR. in Appendix 16, deals with Council Directive 84/450 of September 10, 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising where the Council of the European Communities having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof while taking into consideration the effect of misleading advertisement which reaches beyond the frontiers of individual Member States, adopted the directives in the form of Articles. Article 3(a) deals with Comparative advertising which shall, as far as the comparison is concerned, be permitted if the following conditions are met:

"(a) it is not misleading according to Articles 2(2), 3 and 7(1).

(b) it compares goods or services meeting the same needs or intended for the same purpose;

(c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

(d) it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;

(e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;

(f) for products with designation of origin, it relates in each case to products with the same designation;

(g) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor of the designation of origin of competing products;

(h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name."

3. The reading of the above would show that comparative advertising cannot be permitted which discredits or denigrates the trade mark or trade name of the competitor. Therefore, while analysing the respective arguments of the parties we have to keep all these factors in mind. We have to see whether in the present case the respondents have disparaged the product of the appellants' namely "PEPSI COLA".

4. Pepsi Company Incorporation Along with Pepsico (India) Holdings Limited and Pepsi Foods Limited, the appellants (plaintiff's before the trial court) filed suit against Hindustan Coca Cola and others. Along with that suit appellants also filed an application for grant of ad interim injunction seeking order restraining the respondents from in any manner infringing upon the registered trade mark of the appellants by use of the word "Peppi" which according to appellant is deceptively similar to that of the appellants' product "PEPSI" in the advertisements and commercials. Restraint order was also sought from infringing upon the copy right of the appellants in the words "Yen Dil Mange More" in television commercials including copying the roller coaster commercial of the appellants. The appellants in fact wanted a restraint order restraining the respondents from telecasting the impugned commercials or any other form of advertisements through print advertising or electronic media as according to the appellants, the impugned comme