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Judgment
The Court: The petitioners in an action for trade disparagement have filed this application inter alia praying for an order of injunction restraining the respondent from telecasting any advertisement as shown in Annexure E to the petition as the said advertisement is seeking to disparage the product of the petitioner.
The petitioners and the respondent are rival in the trade. Both the parties are in the same trade and have common trade channel. Petitioner No.1 claims to be the market leader in relation to lip care or skin care products and holds a registered trade mark "VASELINE" both as word and device and also three dimensional.
The petitioners have stated that petroleum jelly products sold under the said trade mark, VASELINE device, the artistic work/trade dress and the white container with a blue cap as shown in Annexure C to the petition are immensely popular throughout the world. The petitioners complain that in the impugned advertisement the respondent has used the same get up and/or trade dress as that of the petitioners and has given an impression that the product of the petitioners is inferior in quality to that of the respondent.
Mr. Ratnanko Banerjee, the learned Senior Counsel representing the petitioners, has drawn my attention to Annexure E at page 67 of the petition where in the last image in the said page it is stated in the advertisement "WINTER HOLIDAYS KI PICTURE AA GAYI!" with a lady showing white container with open lid blue cap which gives an impression that she is using the product of the plaintiffs and thereafter at page 71 the same container along with other containers have been shown as "SADHARAN" (i.e. ordinary) and those other "SADHARAN" products are swiped out because of "SADHARAN" quality of those products. On a comparison of the documents appearing at page 63, 64 and 65 with the pictures forming part of the advertisement at page 67 and 71, it gives an impression that the product of the petitioners has been stated to be "SADHARAN" in comparison to the respondent and thereafter because of "SADHARAN" those products are rejected. The said advertisement prima facie given an impression that the product of the petitioners is inferior in quality to that of the respondent. However, before filing this application no notice was served upon the respondent alleging trade disparagement.
On the basis of the documents disclosed in the petition, in my view, the petitioners are able to make out a strong prima facie case and the balance of convenience lies in favour of passing a limited order in favour of the petitioners as refusal to pass any order at this stage may likely to cause greater hardship.
Under such circumstances, the respondent is restrained from telecasting, uploading, circulating or displaying the white container with blue cap in the advertisement as shown at pages 67, 68, 69 and 71 of the petition for a period of three weeks from the date of service of this application as until further order whichever is earlier.
The petitioners shall communicate this order along with the copy of the plaint and petition upon the respondent within a week from date, failing which this order shall stand vacated.
The matter is made returnable on 7th January, 2019.