The advent of electronic media, particularly television a few
decades ago, brought along with it a boom in advertising. With a
rising number of private channels and increasing marketing budgets
competition has come about, giving rise to issues such as
disparagement, trade libel, slander of goods, malicious falsehood
etc. Black 'Law Dictionary defines "disparagement" as
a false or injurious statement that discredits or detracts from the
reputation of another's property, product or business.
In the recent case of Dabur India Ltd vs Colortek
Meghlaya Ltd 2010 (42) PTC 88 (Del.), Dabur India Ltd. filed
for an injunction vide Order 39 Rules 1 & 2 of the
Civil Procedure Code, 1908 in respect of telecast of Good
Knight advertisement alleging that it disparages the advertisement
for Odomos cream.
The case exclusively revolves around Good Knight Natural
Cream's advertisement (aired on Zee News Channel on October 8,
2009). Dabur India submitted the statistics of its mosquito
repellent cream's strong market share (84-86%) as the reason,
owing to which, the advertisement of Good Knight targeted their
product. Further, Dabur India contended that an injunction should
be granted since Good Knight Natural Cream's advertisement
denigrated Dabur's product, Odomos, implying that it caused
rashes and allergies. The contention was supported by stating even
if 'overt' and 'covert' disparagement or, that
disparagement is generic in nature or in cases where goods are
slandered as a class, an injunction must be granted.
Responding to this contention raised by Dabur India, Colortek
Meghalaya Pvt. Ltd replied, seeking dismissal on a variety of
grounds, ranging from the lack of cause of action to the extensive
research behind the manufacture of Good Knight Naturals, which
mitigated allergies or rashes. The Counsel for Colortek Meghalaya,
responding to the claims of Dabur India, pointed out that in a case
of disparagement a clear intention of causing harm must be
established, followed by the damage caused by the alleged
He also brought into purview Section 30A(x) of the Monopolies
Restrictive Trade Practices, 1969, wherein specific disparagement
of goods is elucidated as also Article 19(1)(a) of the Constitution
of India which encompasses advertising as a form of commercial
On the basis of the above contentions made by both parties, the
Single Judge noted that both the creams used a common ingredient -
Oil of Citronella - as an insect repellent. The only difference,
according to Colortek Meghalaya Pvt. Ltd, is that its cream
contains milk-based protein that does not cause rashes or
The court opined that the statement made by Colortek may be an
idle boast of puffery, but it certainly does not constitute
disparagement. It was further observed that the defendant
couldn't generally be seen to disparage mosquito repellent
creams because it manufactures the same as well.
The Court made reference to Royal Baking Powder Company
vs. Wright Crosssley & Co., (1901) 18 R.P.C 95 where
it was enumerated that three main ingredients should be included in
a malicious prosecution, namely, the impugned statement in untrue,
the statement is made maliciously, without just cause or excuse and
that the plaintiffs have suffered special damage thereby.
Various other cases were referred to and taken into
consideration by the Division Bench of the High Court of Delhi
while hearing the appeal of the case. The Division Bench affirmed
the Single Judge's decision that there was no disparagement by
the impugned advertisement.
However, it was concluded by the Court that at the interlocutory
stage it would be best for the Court to step into the shoes of a
reasonable and prudent man and asses for itself the impact of the
impugned advertisement. Going by this rationale, it was held that
the impugned advertisement prima facie did not commit the
tort of "malicious falsehood", hence no disparagement
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