The main legal point established is that an advertisement should be judged as a whole and from the perspective of a reasonable consumer, and that prima facie disparagement can warrant the grant of an interim injunction.

JUDGMENT

(Prayer in O.A.No.737 of 2021: This Original Application is filed under Order XIV Rule 8 of Original Side Rules r/w. Order 39 Rule 1 and 2 of CPC praying to grant an order of interim injunction restraining the Respondent, its men, servants, agents, assigns, directors, officers, any person claiming through or under it from issuing/circulating/publishing/telecasting/streaming the offending advertisement filed as Plaint Document No.2, or other similar advertisement in any media and in any language and thereby, disparaging/denigrating the Applicant’s product Vicks Cough Drops by making false, injurious and misleading representations, either directly or indirectly, or in any other manner whatsoever pending disposal of suit.)

1. This Original Application is filed to restrain the respondent from issuing, circulating, publishing, telecasting or screening the impugned advertisement or any similar advertisement in any media and thereby disparaging or denigrating the applicant’s product, Vicks Cough Drops.

2. The applicant is a company engaged in the manufacture and sale of consumer staples, which are otherwise referred to as fast moving consumer goods. One of the products manufactured and marketed by the applicant is Vicks Cough Drops. This product is available in three flavours, namely, menthol, honey and ginger. The menthol flavoured Vicks Cough Drops is sold in the form of a caramel brown colour lozenge in a blue pillow pack. The applicant asserts and alleges that the respondent released an advertisement with regard to its product ‘Strepsils’ in the Tamil media recently, which maliciously disparages Vicks Cough Drops. The applicant asserts that the advertisement refers to Vicks Cough Drops as an ordinary tablet (satharana mathirai), as opposed to medicated ‘Strepsils’. According to the applicant, the fact that the applicant’s product is being targeted in the advertisement is clear from the blue pillow pack, which is shown both in the opening frame and in the comparative frame, and in the caramel brown lozenge which is shown while the voice over describing it as an ordinary tablet is played.

3. The applicant also points out that the advertisement shows a lady television presenter with a sore throat condition taking out a blue coloured pillow pack resembling that of the menthol flavored Vicks Cough Drops. An expert is shown questioning her choice by deprecatingly referring to it as an ‘ordinary tablet’. The next frame of the visual shows the lady’s condition deteriorating from a sore throat to a cough to a condition wherein she has red eyes and nose and appears dishevelled. The applicant states that the advertisement continues by showing the expert opining that a sore throat could be a symptom of major illnesses and that the lady should take ‘Strepsils’. Thereafter, the visual is in the form of a split frame which depicts ‘Strepsils’ as a bright orange tablet in the oral cavity, which heals and provides long lasting relief. On the contrary, the split frame compares and contrasts this by depicting a caramel brown ‘ordinary tablet’ (satharana mathirai) shown along with a blue pillow pack, which has no positive effect at all. The applicant points out that the Vicks Cough Drops have about 66% market share in the relevant category and that the disparaging advertisement of the respondent is designed to unfairly wean away its customers by denigrating the product. In support of this contention, the applicant relies upon a survey conducted amongst potential customers and the report prepared on the basis thereof.

4. The applicant also points out that the targeted product is clearly that of the applicant since blue pillow packs are not used by persons manufacturing similar products. The applicant points out that the only other blue pillow packs in the market are used by manufacturers of products such as mentos and center fresh which constitute a distinct category. Likewise, it is pointed out that the only other lozenges, which are brown in co