Trademark Injunction – Disparaging of Product in Advertisement or Telecast
Trademark Injunction – Disparaging of product in advertisement or telecast
On balance, and by way of a conclusion, we feel that notwithstanding the impact that a telecast may have, since commercial speech of trademark is protected and an advertisement is commercial speech, an advertiser must be given enough room to play around in (the grey areas) in the advertisement brought out by it. A plaintiff (such as the Appellant before us) ought not to be hyper-sensitive as brought out in Dabur India. This is because market forces, the economic climate, the nature and quality of a product would ultimately be the deciding factors for a consumer to make a choice. It is possible that aggressive or catchy advertising may cause a partial or temporary damage or trademark injunction to the plaintiff, but ultimately the consumer would be the final adjudicator to decide what is best for him or her.
Having said this, we are of the opinion after having gone through the commercial not only in its text (as reproduced above) but also having watched it on a DVD that there is absolutely nothing to suggest that the product of the Appellant is targeted either overtly or covertly. There is also nothing to suggest that the commercial denigrates or disparages the Appellant’s product either overtly or covertly. There is also no hint whatsoever of any malice involved in the commercial in respect of the Appellant’s product – indeed, there is no requirement of showing malice. Learned counsel for the Appellant of trademark submitted before us that since his client has over 80% of the market share in the country and a 100% market share in some States, the obvious target of the commercial is the product of the Appellant. In our opinion, this argument cannot be accepted. The sub-text of this argument is an intention to create a monopoly in the market or to entrench a monopoly that the Appellant claims it already has. If this argument were to be accepted, then no other mosquito repellent cream manufacturer would be able to advertise its product, because in doing so, it would necessarily mean that the Appellant’s trademarked product is being targeted. All that we are required to ascertain is whether the commercial denigrates the Appellant’s product or not. There is nothing in the commercial to suggest a negative content or that there is a disparagement of the Appellant’s product. The commercial merely gives the virtues of the product of the Respondents, namely, that it has certain ingredients which perhaps no other mosquito repellant cream has, such as tulsi, lavender and milk protein. While comparing its product of trademark with any other product, any advertiser would naturally highlight its positive points but this cannot be negatively construed to mean that there is a disparagement of a rival product.
That being so, whether the Appellant’s product is targeted or not becomes irrelevant. Learned counsel for the Appellant further submitted that the use of expressions such as an apprehension of getting rashes and allergy or an allegation that other creams cause stickiness amounts to disparagement of the Appellant’s product of trademark injunction. We cannot agree with the submission of learned counsel. There is no suggestion that any other mosquito repellent cream causes rashes or allergy or is sticky. All that it is suggested is that if a mosquito repellent cream is applied on the skin (which could be any mosquito repellent cream) there may be an apprehension of rashes and allergy. Generally speaking, this may be possible depending on upon the quality of the cream, the sensitivity of the skin of the consumer and the frequency of use etc.- we cannot say one way or the other. The commercial does not suggest that any particular mosquito repellent cream or all mosquito repellent creams cause rashes and allergy. In fact, the Respondents of trademark are also trying to promote a mosquito repellent cream and it can hardly be conceived that all mosquito repellent creams (which would naturally include the Respondents’ product) cause rashes or allergy. All that the Respondents are suggesting is that since their product contains tulsi, lavender and milk protein such apprehensions are greatly reduced or that they should not reasonably exist.
With regard to stickiness, this is entirely a matter of opinion. What one person may perceive as stickiness, may not be considered as stickiness by another. No trademark injunction can be granted in a case such as the present on an bereavement based on a perception. As mentioned above, a plaintiff should not be hyper-sensitive. So far as this case is concerned, we are left with an impression that the Appellant is being hyper-sensitive.
It does appear that the entry of another product in the market may challenge the monopoly or the near monopoly of the Appellant and this Court is being used to ward off that challenge through the trademark injunction process. Finally, we may mention that Reckitt & Colman of India Ltd. v. M.P. Ramchandran and Anr., was referred to for the following propositions relating to comparative advertising:
(a) A owner of trademark is entitled to declare his goods to be best in the world, even though the declaration is untrue.
(b) He can also say that his goods are better than his competitors’, even though such statement is untrue.
(c) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors’ he can even compare the advantages of his goods over the goods of others.
(d) He however, cannot, while saying that his goods are better than his competitors’, say that his competitors’ goods are bad. If he says so, he really slanders the goods of trademark of his competitors. In other words, he defames his competitors and their goods, which is not permissible.
(e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of trademark injunction restraining repetition of such defamation. These propositions have been accepted by learned Single Judges of this Court in several cases, but in view of the law laid down by the Supreme Court in Tata Press that false, misleading, unfair or deceptive advertising is not protected commercial speech of trademark, we are of the opinion that propositions (a) and (b) above and the first part of proposition (c) are not good law.
While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if does so, the advertiser must have some reasonable factual basis for the assertion made. It is not possible, therefore, for anybody to make an off-the-cuff or unsubstantiated claim that his goods of trademark are the best in the world or falsely state that his goods are better than that of a rival.