Mukul Mudgal, J.:— This application seeking directions has been filed pursuant to the order of the Division Bench of this Court dated 14th October, 2004 which reads as follows:—
“During the hearing of the appeal, the appellant has given a modified version of a Story Board which is at page 83 to 86 of the paper book. Learned counsel for the appellant says that this Court may take modified version and decide the controversy in the matter. As a matter of fact learned Single Judge passed the order on the basis of the impugned Story Board which is at pages 37 to 41 of the paper book. Judicial proprietary demands that for modified version, a fresh application be filed by the appellant. Let an application be filed by the appellant before the learned Single Judge arid learned Single Judge after affording the opposite party, an opportunity to hear will pass appropriate orders in accordance with law expeditiously.”
2. As per the aforesaid judgment of the Division Bench, a modified version has been proposed by the defendant by this application. Some of the captions in the modified version, wherein the purchaser is asking for a Dant Manjan and the Star of the advertisement Sunil Shetty is warning him about ‘Sadharan Dant Manjan’ which is said to be ‘khurdara’ (rough) on the teeth, has been objected to by the learned counsel for the plaintiff on the ground that this does not depart from the generic disparagement proscribed by the judgment of this Court dated 9th September, 2004. During the hearing certain discussions took place between the counsel regarding the modified version and during the course of the hearing this application, the parties were asked to suggest versions different from that annexed to the application. It is, however, contended that the suggestions given by the either side for the alterations are not acceptable and this Court was therefore urged to decide this application in respect of the annexed advertisement campaign and considering the fact that the divergence of views clearly show that the resolution of the dispute by amicable settlement is not possible.
3. The law of disparagement of rival product was set out in Dabur India Ltd. v. Emami Limited and followed in the order of this Court dated 9th September, 2004. In the aforesaid judgment a generic disparagement as opposed to specific disparagement was discussed in paragraph 19 as follows:—
“19. I am further of the view that generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genre of a product within which a complaining plaintiff falls and raise a defence that the plaintiff has not been specifically identified. In this context the plaintiff has rightly rejected the offer of the defendant to drop the container from its advertisement so as to avoid the averred identification of the plaintiffs product……”
4. In paragraph 20 following findings were made by this Court:
“20. The practice of undue obeisance to English jurisprudence without any thought to the merit and reasoning of such judicial wisdom should also be discouraged. When there is a judgment of Hon'ble Justice Dr. M.K Sharma directly on the point of generic disparagement, I see no reason why one should travel westwards for seeking enlightenment. Similarly on the question of rival product disparagement the Division Bench of this Court in Pepsi Co. (supra) has also held that defamation of the product of a rival manufacturer can not be done. Undeniably it is not the puffing up of the defendant's product i.e the Colgate Tooth powder which can be found objectionable but the running down of a rival product which is the situation in the present case.”
5. Thus the Division Bench of this Court in Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd; & Anr., 2003 (27) PTC 305 (Delhi), and two orders of the learned Single Judge held that rival product cannot be disparaged. It has also been held that the generic disparagement of a class or genre of the product is not permissible. Considering the fact that in the proposed advertisement suggested by the defendant in the present application the word ‘Lal’ qualifying Dant Manjan has been removed yet the harmful affect of Dant Manjan in general amplified in the proposed advertisement by calling it ‘sadharan’ dant manjan which is (khurdara) abrasive on the teeth still falls within the prohibition of generic disparagement proscribed by the judgment of this Court dated 9th September, 2004 and in this form is not permissible. Accordingly, this application is dismissed.
CCP No. 124/2004
List the matter on 28th February, 2005.