JUDGMENT : G.S. Sistani, J. The Plaintiff is a company engaged in the manufacture, packaging, sale and distribution of various consumer goods. The Plaintiff through its subsidiaries and affiliate companies operates in several different countries around the world. The business comprises of various consumer products including toilet care products, surface care products, pharmaceuticals, insecticides and food products which bear the trademarks Harpic, Dettol, Mortein and Cherry Blossom. 2. The grievance of the Plaintiff is that the Defendant has indulged in disparagement of its product Harpic, a toilet cleaner which is identified by members of the trade and public by its unique bottle shape and colour combination. 3. It is stated that the Plaintiff obtained a design registration in respect of the bottle shape which is a registered design bearing No. 184080 dated 29.11.2000. The registration is valid and subsisting. The Plaintiff also has a design registration for the child resistant cap. The product applying the bottle design and child resistant cap was launched by the Plaintiff sometime in the year 2001. The Plaintiff has been continuously and uninterruptedly using the said packaging which includes the bottle shape and label for marketing and selling their toilet cleaners. 4. The Plaintiff claims itself to be a market leader in the toilet cleaning product segment. By virtue of such extensive sale and sales promotion activities, the bottle shape has become synonymous with the Plaintiff, particularly in relation to toilet cleaners. Members of the public and those of trade are aware of the said bottle shape and associate the same with the Plaintiffs product. 5. The Plaintiff was shocked when it learnt that the Defendant has introduced an advertisement on television for its toilet cleaning product under the mark "Tex" which disparages the product of the Plaintiff sold under the trademark "Harpic" in the unique and distinctive packaging. According to the Plaintiff, a bare viewing of the said advertisement would show the malicious intention of the Defendant to gain a foothold in the market by tarnishing the goodwill and reputation of the Plaintiff s product. 6. According to the Plaintiff, a bare viewing of the said advertisement would show the malicious intention of the Defendant to gain a foothold in the market by tarnishing the goodwill and reputation of the Plaintiff s product. 6. On an application being I.A. No. 12206/2006 filed by the Plaintiff under Order XXXIX Rules 1 and 2, this Court granted an ex parte injunction on 6.11.2006 restraining the Defendant from advertising its product in the electronic media in a manner which disparages or runs down the product of the Plaintiff as mentioned in the story board which was annexed to the plaint. 7. The main thrust of the argument of the learned Counsel for the Plaintiff is that the product of the Plaintiff "Harpic" is a market leader with 80% share. The moment a consumer looks at a bottle which is blue with a red cap and which refers to a toilet cleaner, he invariably associates the same with the product of the Plaintiff and none else. 8. Learned Counsel for the Plaintiff further argues that even in the present story board, although the bottle has been blurred, but mere use of the words 'toilet cleaner' and a 'blue image' having a red cap would only lead to the conclusion that the bottle in hand in the product of the Plaintiff. Even in the blurred image, the colour blue, red cap and white label not only resembles but is virtually identical to the bottle of the Plaintiff's product, The result is, in fact, a deliberate attempt by the Defendant to give an impression to the viewer that the offending bottle is that of the Plaintiffs product. The advertisement then disparages the Plaintiff’s "Harpic" brand product by making false and misleading comparisons. 9. Learned Counsel for the Plaintiff further submits that there is a disparagement in the following manner: IMAGE 10. It is alleged that a bare reading of the story board as shown above would show that the impugned advertisement is nothing but a slanderous attempt by the Defendant to provide a launching pad for its product by defaming and disparaging the worth and reputation of the leading brand. The only impression which the public at large can gather is that the product of the Defendant is better than that of the Plaintiffs product which is completely worthless. 11. The only impression which the public at large can gather is that the product of the Defendant is better than that of the Plaintiffs product which is completely worthless. 11. Learned Counsel for the Plaintiff submits that the consumers can relate even the blurred bottle with that of the product of the Plaintiff as the consumers are well aware of the product of the Plaintiff which has 80% share in the market. Even otherwise, the Defendant cannot be permitted to denigrate the product of the Plaintiff as a while. In fact, mere denegration of a product by a protagonist gives a cause of action to a person. The complete purpose of story board is to show that the Plaintiffs product does not clean and is shown in a very poor light. 12. Learned Counsel for the Plaintiff relies on the report of the evaluation of chemical test of Harpic power Vs. other disinfectious. As per the Plaintiff, this test report shows that its product contains a higher acid content and, thus, would clean better. 13. The Defendant, at the very outset, has argued that even in the initial advertisement, they have never shown the product/bottle of the Plaintiff in the story board of the main advertisement. The blue colour bottle shown in the advertisement is a product marketed by Mis. Kingsbury Personal Care Pvt. Ltd. and is distinct with the product of the Plaintiff. The said M/s. Kingbury Personal Care Pvt. Ltd. has been selling its product under the trademark "Indaz" toilet cleaner in a pentagon label and the said product is available in the modern retail stores including some modern stores at Chennai. The Defendant with a view not to disparage the other products has removed all the labels and put the symbol "X" and also brand the name as "brand X" in the frame of the advertisement. The Defendant has neither exploited the Plaintiffs product nor had any intention of disparaging the product of the Plaintiff. 14. It is submitted by learned Counsel for the Defendant that admittedly the Plaintiffs mark "Harpic" has not appeared or shown in the advertisement. As per the present story board, the bottle is so blurred that it is completely beyond recognition and at a first glance even does not look at a bottle without doubt three colours - red, blue and white are visible. As per the present story board, the bottle is so blurred that it is completely beyond recognition and at a first glance even does not look at a bottle without doubt three colours - red, blue and white are visible. The Plaintiff cannot seek a monopoly on the colour "blue". No shape at all is visible. In fact, there are many manufacturers in the market which are selling their product in the bottler which are blue and red including two well known manufacturers, namely, "Sani Fresh" and "Kiwi Kleen". 15. Learned Counsel for the Defendant has also argued that the shape of the bottle as adopted by "Harpic" is also found in many products in the market. Great stress has been laid on the fact that the Plaintiff has failed to disclose that it has been using the trademark "Harpic" in containers having the same shape but in different colours, namely, "Harpic Fresh Citrus" in yellow colour, "Harpic Fresh Floral" in purple colour, "Harpic Fresh Pine" in green colour and "Harpic Plus Bleach" in white colour. The Defendant further submits that the detergent industry has been predominantly suing the Blue colour in products including washing powder, washing soaps, detergent cakes (Surf, Rin), etc. The Defendant has further pointed out that the Design Registration Certificate of the Plaintiff contains a disclaimer under SI. No. 3 viz. "No claim is made by virtue of this registration to any right to the colour or combination as appearing on the design". As per the Defendant, the present story board design does not show any bottle at all. The trademarks of both the bottle are totally different. The Defendant sells its products in the white colour bottle whereas the Plaintiff is selling its products in various colours, including blue and the design of the bottle is distinctively different. 16. The Defendant also relies on two certificates dated 13.11.2006 issued by R&D Laboratory of Cavin Kare, giving results of viscosity of Toilet Bowl Cleaners and time for flow of Toilet Cleaners on inclined surface of Porcelain Toilet - of Tex Branded Toilet Cleaner in comparison with other toilet Cleaners as well as by Chennai Industrial Cooperative Analytical Laboratory Limited. As per the Defendant, the advertisement merely constitutes a faithful representation of true facts and it cannot be described as disparagement of the Plaintiffs product. 17. As per the Defendant, the advertisement merely constitutes a faithful representation of true facts and it cannot be described as disparagement of the Plaintiffs product. 17. Whether or not the goods of a trader or manufacturer are disparaged would depend upon the facts and circumstances of each case. There is no cut and dried formula, for general application. All that the Court need to be conscious of is that while disparagements may be direct, clear and brazen, they may also be subtle, clever or covert. What is the statement made by the rival trader and how it belittles, discredits or detracts from the reputation of another's property, product or business is the ultimate object of the judicial scrutiny in such cases. Before I examine the rival submissions in the instant case, I may refer to a few of cases where the Courts found the statements to be disparaging, hence actionable. 18. Learned Counsel for the Plaintiff has relied upon Dabur India Limited Vs. Emami Limited, (2004) 112 DLT 73 , In that case, the Plaintiff was manufacturing and marketing Chyawanprash. Defendant was also manufacturing Chyawanprash under the brand name 'Himani Sona-Chandi Chyawanprash'. The Defendant came up with an advertisement 'GARMION MEIN CHYAWANPRASH BOOL JAO, HIMANI SONA CHANDIAMRITPRASH KHAO'. The Court found this statement to be disparaging. It was observed that the Defendant has sought to forbid and exclude user of Chavawanprash during the summer months so that it can exclusively capture the Indian market during the summer months. It was further held that even if there is no direct reference to the product of the Plaintiff and only a reference is made to the entire class of Chayawanprash in its generic sense, even in those circumstances, disparagement is possible. Relying on the decision of Reckitt and Colman of India Ltd. v. Kiwi T.T.K. Ltd. 1996 (16) PTC 393 , it was held that a manufacture is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods but the same would not give a cause of action to the other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defemation to the goods of the manufacturer so doing. However, a manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods. 19. However, a manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods. 19. Learned Counsel for the Plaintiff also relied upon Dabur India Limited Vs. Colgate Palmolive India Ltd., AIR 2005 Delhi 102, In that case, the Defendant's advertisement claimed that "Lall Dant Manjan was harmful for the tooth". The Court found the statement and comparison to be disparaging. It was also held that slandering of a rival product as bad is not permissible. 20. Learned Counsel has also relied upon Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. 1999 PTC (19) 741. In this case, the Plaintiff manufactured a whitener sold under the brand name 'Robin Blue'. The Defendant manufactured a whitener under the brand name 'Ujala'. For the purpose of promoting the sale of Ujala, the Defendant aired an advertisement showing a container (similar to that of the Plaintiffs) upside down with the liquid gushing out, although the name of the Plaintiff or the brand name of the Plaintiff was not mentioned. The advertisement further showed sediments being formed at the bottom of the wash bucket. It was held that there was disparagement. 21. On the other hand, learned Counsel for the Defendant has relied upon Dabur India Ltd. Vs. Wipro Limited, (2006) 129 DLT 265 , In this case, it was observed that the commercial clearly intends to say that as compared to the product of the Plaintiff, the product of the Defendant is far better. It was also held that it is impermissible for an advertiser to proclaim that its product is the best. After some modification of the commercial, it was found that the advertisement was not disparaging. 22. Reliance has also been placed on Godrej Sara Lee Ltd. Vs. Reckitt Benckiser (I) Ltd., (2006) 128 DLT 81 , It was held that if the Defendant highlights its better feature while comparing its product with that of the Plaintiff in an advertisement given in newspaper, no possible objection can be raised thereto. It was observed that the message which was sought to be convened was that the product of the Defendant is better in the sense that it is more convenient to use the same for destroying two different kinds of insects at the same time. It was observed that the message which was sought to be convened was that the product of the Defendant is better in the sense that it is more convenient to use the same for destroying two different kinds of insects at the same time. Thus, there is neither any negative reference to the Plaintiffs products nor it is defamatory or libellous. 23. Learned Counsel for the Defendant has heavily relied upon Hindustan Lever Limited v. Reckitt Benckiser India Limited and Ors. CS(OS) No. 1292/2006 - decided on 17.11.2006 a judgment by a Single Judge of this Court wherein it was held that in a given case, the Court is required to find out as to whether the advertiser is merely trying to promote his product for which even he is a allowed to puff up his product and can go to the extent of saying that his goods are better than his competitor's goods. 24. I have heard learned Counsel for the parties and also perused the Judgments relied upon by the parties. 25. During the course of hearing of the case, the parties tried to negotiate for a settlement and a revised story board was ultimately taken on record wherein, according to the Defendant, substantial changes were made in the original story b board market as Annexure A attached to the plaint. For the purpose of deciding the present two application under Order XXXIX Rules 1 and 2 and Order XXXIX Rule 4 Code of Civil Procedure, this Court is only concerned with the subsequent story board which was taken on record on 20.4.2007. 26. At this stage, it would be relevant to throw light on the definition of 'disparagement'. 27. Black's Law Dictionary, (Eighth Edition, 2004) gives the following meaning to the expressions 'Disparagement' and 'Disparagement of goods'; Disparagement: Matter which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another's property in land, chattels or intangible, things or upon their quality. A falsehood that tends to denigrate the goods or services of another party is actionable in a common law suit for disparagement. The same conduct is also actionable under certain state statutes and can form the basis for an F.T.C. Complaint. There is no private federal cause of action for disparagement under the Lanham Act. A falsehood that tends to denigrate the goods or services of another party is actionable in a common law suit for disparagement. The same conduct is also actionable under certain state statutes and can form the basis for an F.T.C. Complaint. There is no private federal cause of action for disparagement under the Lanham Act. Disparagement of goods: A statement about a competitor's goods which is untrue or misleading and is made to influence or tends to influence the public not to buy. 28. The New International Webster's Comprehensive Dictionary defines e disparage/disparagement to mean to speak slightly, under value, to bring discredit or dishonour upon, the act of depreciating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth, and degradation. 29. Salmond on Torts (20th Edition) recognizes disparagement as a tort and defines it as under: The tort requires the making of a false statement, with "malice," to some person other than the Plaintiff, as a result of which the Plaintiff suffers damage. ... A statement by one trader that his goods are superior to those of a rival (mere "puffing"), even if it is false and known to be so and causes damage to the other is not actionable, for Courts of law cannot be converted into advertising agencies for trying the relative merits of rival productions. However, this "privilege" is confined to those imprecise commendations which are a common part of advertising and to which a reasonable person does not attach very much importance. Accordingly, if the Defendant chooses to frame his comparison in the form of scientific tests or other statements of ascertainable fact, he will be liable if they are proved untrue. 30. In Griffiths v. Benn, Cozens Hardy, MR has defined disparagement as under: To disparage a trader's goods which is often (though inaccurately) spoken of as a trade libel, does not give grounds for an action of libel, although, if special damage is proved, the Plaintiff may recover in an action on the case. 30. In Griffiths v. Benn, Cozens Hardy, MR has defined disparagement as under: To disparage a trader's goods which is often (though inaccurately) spoken of as a trade libel, does not give grounds for an action of libel, although, if special damage is proved, the Plaintiff may recover in an action on the case. On the other hand, the words used, though directly disparaging goods, may also impute such carelessness, misconduct, or want of skill, in the conduct of his business by the trader as to justify an action of label....In considering any statement alleged to amount to a slander of goods, it is necessary to distinguish what may constitute a false statement about another's goods and that which may merely amount to what is generally referred to as a 'trader's puff, that is mere exaggeration about the qualities of one's own goods. 31. The Calcutta High Court in the case of Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. 1999 PTC (19) 741, after taking note of some English Judgments, culled out the following propositions of law: (i) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (ii) He can also say that his goods are better than his competitors', even though such statement is untrue. (iii) For the purpose of saying that his goods are the best in, the world or his goods are better than his competitor's he can even compare the advantages of his goods over the goods of ethers. (iv) He however, cannot, while saying that his goods are better than his competitors', say that his competitor's goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible. (v) 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 injunction restraining repetition of such defamation. 32. A Division Bench of this Court in the case of Pepsi Co., Inc. and Others Vs. Hindustan Coca Cola Ltd. and Another, (2003) 27 PTC 305 , explained these very principles more elaborately. 32. A Division Bench of this Court in the case of Pepsi Co., Inc. and Others Vs. Hindustan Coca Cola Ltd. and Another, (2003) 27 PTC 305 , explained these very principles more elaborately. The Division Bench noted as following : that frivolity has become a serious business these days. Television commercials which are meant to portray a strylization of the good life are crafted with great care, using all the skills that are arts and psychology have produced. The vast majority of the viewer of the commercial advertisement on electronic media re influenced by the visual advertisements as these have a far-reaching influence on the psyche of the people, therefore, discrediting the product of a competitor thorough commercial would amount to disparagement as has been held by the High Courts in U.K. and U.S.A. Quoting from Kerly's Law of Trade Marks and Trade Names by David Kitchin and Anr, dealing with the effect of misleading advertisement and the provisions relating to Treaty of the Member States of Eurpoean Economic Community, the Court noted that in those jurisdictions comparative advertising is permitted if the following conditions are met: (a) it is misleading according to Articles 2(2), 3 and 7(1). (b) it compares goods or services meeting the same needs or intended for the same purpose. (c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price; (d) it does not create confusion in the market place between the adviser and a competitor or between the adviser's trade marks, trade name, other distinguishing marks, goods or services and those of a competitor. (e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods services, or circumstances of a competitor; (f) for products with designation of origin, it relates in each case to products with the same designation; (g) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor of the designation of origin of competing products; (h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name. 33. In this age of extreme consumerism and cut-throat competition ad-commercials on electronic media have provided an indispensable platform for traders to promote their products to the purchasing public. 33. In this age of extreme consumerism and cut-throat competition ad-commercials on electronic media have provided an indispensable platform for traders to promote their products to the purchasing public. Such ad-commercials, whilst on one hand, have opened new vistas for the most interesting, innovative and creative marketing strategies; on the other hand, they have also spawned a culture of ugly trade rivalries, negative publicity and unhealthy competition in their fight to capture a larger share in the market, large corporate honchos are seen fighting tooth and nail not only in the market place but also in Courts of law. Amidst this cesspool of litigation and conflicting interests, one positive aspect undoubtedly has been the gradual but steady development of the law underlying commercial speech and comparative advertising, which until a decade ago, was a grey in the Indian legal system. 34. According to the principles laid down, the first two principles as laid down by. the Calcutta High Court in Reckitt and Colman of India Ltd. (supra), a tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue. The tradesman can also say that his goods are better than his competitors, even though such statement is untrue. The third principle permits that for the purpose of saving that one's goods are the best in the world or his goods are better than his competitor's, he can even compare the advantages of his goods with the goods of others. The fourth principle is that one 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 his competitors. In other words, he defames his competitors and their goods, which is not permissible, which according to the Plaintiff is fully applicable to the facts of this case. Once it is held and admitted that the tradesman is entitled to compare the advantages of his goods with the goods of others, there would be a very thin line between showing the advantage of his goods and showing that the competitor's goods are bad. 35. In this case, the revised story board, there is absolutely no mention of the name of the product of the Plaintiff. The bottle has been blurred to such an extent that the shape shows no bottle at all. 35. In this case, the revised story board, there is absolutely no mention of the name of the product of the Plaintiff. The bottle has been blurred to such an extent that the shape shows no bottle at all. The Defendant has given four qualities with regard to its product (1) 'kaafi gaadha hai' (quite thick); (2) 'kam gale aur kare ziddi peelae daagon ke safai' (uses less and clears hard yellow spot); (3) 'jyada gadha poori safai aur khushbu bhi hai' (much thicker, complete cleanness and having fragrance as well): and (4) 'mera pyaara toilet cleaner aisi safai deta hai' (my lovely toilet cleaner gives this sort of cleanness). There is no mention again with regard to any other product, but comparison is between the products to show that the Defendant's product is thicker, use is less, clears the rigid yellow spot and also has a fragrance. 36. On going through the revised story board, I find there is no positive statement against the Plaintiff, attempting to show down or run down the product of the Plaintiff as was the position in Dabur v. Colgate Palmolive (supra) and Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. (Supra). Compared to these cases, no doubt the Defendant is comparing its product with another toilet cleaner. The revised story board does not show that the Defendant is showing the Plaintiffs product as bad and that its product is better than that of the Plaintiff. Therefore, the Defendant is not defaming the Plaintiffs product. 37. The Court cannot lose sight of the fact that Plaintiff is the market leader in toilet cleaners, but if a tradesman is allowed to compare and if the comparison is not slanderous and the comparison is simply to puff up the product, the Court cannot call it a disparagement. It the argument of the Plaintiff is to be accepted, no person would be allowed to compare his goods with those of other persons. The thrust of the revised story board primarily highlights the advantages of the Defendant's product. The highlight of the advertisement that the Defendant's product is 'it is thicker, it cleans better and it has a good fragrance'. Nowhere in the story board there is any verbal or direct attack on the product of the Plaintiff or the same class of products. 38. The highlight of the advertisement that the Defendant's product is 'it is thicker, it cleans better and it has a good fragrance'. Nowhere in the story board there is any verbal or direct attack on the product of the Plaintiff or the same class of products. 38. As far as colour of blue and red can is concerned, it is not disputed that besides the blue and red colours, the Plaintiff is selling the same 'HARPIC' in different colours, including white, green, and yellow. Thus, the Plaintiff cannot claim monopoly on the blue colour with respect to the bottle or the product in the bottle. 39. In view of the settled position of law and the aforesaid discussions, I have no hesitation in coming to the conclusion that the revised story board adopted by the Defendant does not in any manner disparage the product of the Plaintiff. Accordingly, the Plaintiffs application being I.A. No. 12206/2006 under Order XXXIX Rules 1 and 2 CPC is dismissed and the Defendant's application being I.A. No. 12968/2006 under Order XXXIX Rule 4 CPC is allowed. The interim order dated 6.11.2006 is vacated. CS (OS) No. 2062/2006 34. Parties are directed to file original documents, if not already filed, within four weeks. 35. List before the Joint Registrar on 13.8.2007 admission/denial of the documents.