JUDGMENT : P.T. Asha, J. 1. The applicant is the plaintiff before this Court. Since the facts relating to all the applications are analogous a composite order is being pronounced in the above matters. The applicant herein has filed a suit for various reliefs detailed in the plaint. 2. Pending the suit the applicant has moved the following interlocutory applications: (a) O.A. No. 72 of 2020: To grant ad-interim injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from using any other indicia whatsoever to associate with / depict the Plaintiff or its products in its advertisements issued in any and all media whatsoever including the electronic media pending disposal of the above suit. (b) O.A. No. 73 of 2020: To grant ad-interim injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from using the depiction of the Plaintiff's product or any other product deceptively similar to that of the Plaintiff's in its advertisement or in any other manner disparaging the goodwill and reputation of the Plaintiff and its product sold under the brand MOOV pending disposal of the above suit. (c) O.A. No. 74 of 2020: To grant ad-interim injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from Issuing or telecasting the impugned advertisement, in any language or issuing any other advertisement which is in any manner disparaging the goodwill and reputation of the Plaintiff and its product sold under the brand MOOV in any other advertisements and in all media whatsoever including the electronic media, social media and/or print media pending disposal of the above suit. (d) O.A. No. 75 of 2020: To grant ad-interim injunction restraining the Defendant, its directors, principals, proprietor, partners, officers, employees, agents, distributors, franchisees, representatives and assigns from Issuing or telecasting the impugned advertisement or in any other manner disparaging the goodwill and reputation of the Plaintiff and its product sold under the brand MOOV in any other advertisements and in all media whatsoever including the electronic media, social media and/or print media or making comparison, importing direct or indirect reference to pain removing products, thereby conveying a message to the public that pain removing products including the MOOV branded product of the Plaintiff are ineffective and useless or in any other manner whatsoever denigrating the pain removing products including the Plaintiff's MOOV branded product pending disposal of the above suit. 3. A common affidavit has been filed in respect of all these applications which more or less repeals the pleadings contained in the plaint. Applicant's case as set out in the applications and the plaint: 4. The applicant would submit that they are a leading company engaged in the manufacture, packaging, sale and distribution of various kinds of health care products and the applicant is an affiliate of Reckitt Benckiser plc.uk. The following products of the applicant that are very popular in this segment are MOOV, ITCH GUARD, KRACK CREAM, etc. 5. The applicant company had introduced MOOV, a pain relief topical product in the year 1986. The product was marketed both as a cream as well as a gel in India. The applicant would submit that they are an established and well known brand in the pain alleviating sector in India. The applicant earns a total turnover of Rs. 284 Crores from the marketing of MOOV cream and Rs. 86 Crores from MOOV spray. 6. The applicant's product is identified by its unique packaging particularly its container with a purple cap. The applicant's product is the only muscle pain relieving product in the market having a purple cap. By reason of its popularity, the colour purple has now come to be associated with the applicant's product MOOV. While so, it is the case of the applicant, that on 19.01.2020 in the midst of the telecast of the Cricket match between India and Australia on Star Sports Thamizh, the applicant had come across an advertisement of the respondent for its pain relief gel / spray under the brand name, Omnigel. While so, it is the case of the applicant, that on 19.01.2020 in the midst of the telecast of the Cricket match between India and Australia on Star Sports Thamizh, the applicant had come across an advertisement of the respondent for its pain relief gel / spray under the brand name, Omnigel. The applicant on making enquiries came to learn that this advertisement is being widely telecast in channels like Zee Thamizh, Polimer, Star Sports Thamizh and in addition in a large number of other channels including Zee Kannada, Udaya TV, Star Bharat, Star Sports 1, etc right from 17.01.2020 onwards. 7. These channels have a wide viewership and that apart the impugned advertisement was also uploaded in the Youtube and was available in the OTT platform. The applicant on enquiry came to learn that the impugned advertisement on Youtube has garnered nearly 50,000 views and it appears that the respondent is contemplating to expand the advertising campaign and start telecasting the advertisement on a very large scale. 8. The applicant is aggrieved by this advertisement, particularly its concluding scene. In this advertisement, at the end, the applicant's product is pushed away by the pharmacist declaring that the same is an ordinary balm which gives an impression to the viewer that the applicant's product is useless and ineffective and the pain is likely to recur over and over again. The applicant has detailed the sequence of the storyline in the affidavit filed in support of the petitions. 9. The applicant would therefore submit that their product has been predominantly displayed with the purple cap along with other products and all of them are declared to be useless. This advertisement therefore disparages the entire category of pain relief gels / balms. By depicting a bottle with a purple cap, the respondent have hit at the applicant's product. The advertisement is attacked on two grounds: (a) That it depicts all other pain relief gels / balms particularly the applicant's product as an ordinary balm which does not relieve the pain permanently and would keep recurring since it does not contain the diclofenac formula; and (b) The advertisement itself is a false and misleading one, wherein it states that, if the respondent's product is used it permanently eliminates pain. 10. 10. To substantiate their attack on the 2nd ground, the applicant has referred to certain medical journals to show that the usage of diclofenac does not result in permanent relief from pain. Therefore, by making such a misleading statement, the respondent was clearly trying to make the intending consumers believe that their product namely, Omnigel, would permanently eliminate the pain by clearing it from its root. 11. The applicant would therefore submit that the advertisement is violative of clause 1(c) (d) and (e) of the Code of Ethics for Advertising in India as laid down by the Advertisement Standards Council of India. 12. The advertisement is not a competitive one but it blatantly denigrates the reputation and good will of the applicant by implying that the same is worthless. The applicant and the respondent are operating in the same market, namely, the pain relieving segment. The repeat telecast / publicity of this advertisement of the respondent is causing grave hardship to the applicant as it is diluting the reputation and the good will of the applicant's product and further the erosion of the applicant's reputation and good will cannot be compensated monetarily. Therefore, the applicant has come forward with the above application. Counter of the Respondent 13. A very detailed counter affidavit has been filed in respect of the above applications, in which the respondent would set forth its achievements and how it has carved a niche for itself in the health product segment. The respondent would contend that they are the Company whose corporate philosophy is to provide low cost affordable medication to one and all. With this laudable object the current motto of the respondent is "None shall be denied". 14. The respondent company has also created several records and innovations in the health segment which has been set out in detail in the counter affidavit. In response to the objection made by the applicant to the impugned advertisement, the respondent company would submit that the advertisement aims to educate the viewers that the respondent's product has diclofenac in it which is an anti-inflammatory drug which addresses the inflammation which is the root cause of the pain. The product is juxtaposed with the other pain balms / sprays which do not have diclofenac as an ingredient. Therefore since they do not address the root cause the advertisement of the respondent terms it as an ordinary gel without diclofenac. The product is juxtaposed with the other pain balms / sprays which do not have diclofenac as an ingredient. Therefore since they do not address the root cause the advertisement of the respondent terms it as an ordinary gel without diclofenac. Therefore, the respondent has not caused any disparagement or denigration to the applicant's product. The respondent would further submit that the applicant's product MOOV does not contain diclofenac and the same is an Ayurvedic preparation, whereas Omnigel is not. 15. The respondent would emphatically state that the product with purple cap does not contain diclofenac, it was only in July 2019 that MOOV advance gel with diclofenac was introduced and the impugned advertisement does not contain any pictorial or other representation of this product-MOOV Advance. The spray form has been launched only in February-March 2020 after the suit was filed. When the suit was filed, the spray that was been marketed by the Applicant did not contain diclofenac. All of these, according to the respondent has been totally suppressed by the applicant in their applications filed for an order of injunction. 16. The respondent has in very great detail extracted the ingredients of Omnigel spray and that of MOOV pain relief spray in the comparative table to show that MOOV pain relief balm does not contain diclofenac. The respondent has also extracted the relevant medical terms like NSAID, (Non-Steroidal Anti-Inflammatory Drug), COX-2 Inhibitor, Prostaglandin, Ileuprofer, including Diclofenac. 17. The respondent would emphatically deny the accusation of the applicant that they have made a false statement vide their advertisement that the pain would be relieved from its root. The respondent would submit that the advertisement does not in any fashion state that the application of Omnigel would permanently eliminate pain. It only says that the drug eliminates the pain from the root and this cannot be interpreted as stating that pain is permanently eliminated. The respondent would further submit that the applicant has totally distorted the various studies that has been made with reference to diclofenac and infact the conclusion in these studies does not state that diclofenac becomes ineffective after a period of time. 18. The respondent would contend that their advertisement only emphasised the fact that their product Omnigel is composed of an active ingredient Diclofenac which unlike a counter irritant addresses the pain from its source (viz inflammation). 18. The respondent would contend that their advertisement only emphasised the fact that their product Omnigel is composed of an active ingredient Diclofenac which unlike a counter irritant addresses the pain from its source (viz inflammation). The respondent would further contend that the product, which the applicant would contend has been disparaged, is not similar to the respondent's product either in character or composition. Therefore the allegation that the respondent has disparaged the products of the applicant is totally false and the applicant has come to court with unclean hands. 19. The respondent would further submit that nowhere in the advertisement have they referred to the applicant's product by name or made any reference to it. It is only in the last few seconds of the advertisement a grey cylinder with a light purple cap has been shown. In fact, it has no resemblance to the applicant's product. They would also point out that no other company has objected to the advertisement and the reason for the applicant to have come forward with these applications is only because they have now introduced a spray containing Diclofenac. 20. They would further submit that the reference to the word "Sadharan" in advertisement is only to show that any pain balm without diclofenac will not address the pain. The respondent would submit that the applicant has not made out any prima facie case and therefore the application should be dismissed. 21. When the matter came up before the Court on 31.01.2020, by consent the following order, as an interim arrangement was passed effective till 10.02.2020:- "The respondent agrees not to carry the impugned advertisement with the three screen shots which are set out in paragraph 15 of the Plaint, or the voice over." This interim order has been extended periodically and is in force to date. Submissions: 22. Extensive oral submissions made on both sides have been reduced into writing, in the form of written arguments, and these submissions are briefly extracted herein below: (A) Mr. Chander M. Lall, Learned Senior counsel appearing on behalf of the counsel for the applicant would submit the following grounds for restraining the respondent from telecasting the impugned advertisement in the form in which it was telecast prior to the order dated 10.02.2020. Chander M. Lall, Learned Senior counsel appearing on behalf of the counsel for the applicant would submit the following grounds for restraining the respondent from telecasting the impugned advertisement in the form in which it was telecast prior to the order dated 10.02.2020. (a) The claim of the respondent that 'pain would be permanently removed' is a false statement and the respondent has made such a statement knowing fully well that the same is false. Though in the impugned advertisement, the voice over would state that Omnigel permanently eliminates pain, however, in the packing it is stated that Omnigel is for "Fast Relief from Pain, Sprain and Strain." The applicant would contend that being conscious about the falsity of the claim, the respondent in its counter has vehemently stated that the advertisement only claims that Omnigel targets the pain. Therefore, it is evident that a false statement has been made. (b) The applicant relies on the following Judgments in support of the above argument: (i) "Colgate Palmolive Co. vs. Hindustan Unilever Limited reported in [(2014) DLT 205]" (ii) Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd. reported in [ 2010 (167) DLT 278 ]" (iii) "Colgate Palmolive (India) Ltd. vs. Anchor Health and Beauty Care Pvt. Ltd. reported in [ 2008(4) LW 628 ]" (iv) "Hindustan Unilever Ltd. vs. Gujarat Co-operative Milk Marketing Federation Limited reported in [2017 (71) PTC 396 (Bom) ]" (c) The impugned advertisement conveys a disparaging message against the product of the applicant and others. The contention of the respondent that its product Omnigel was the only pain relieving drug containing Diclofenac is totally false since MOOV Gel was available with Diclofenac, when the impugned advertisement was being aired. The respondent cannot seek adjudication on the basis of a comparative efficacy at the interim stage since the claim of superiority can be tested only at the time of trial. The respondent cannot seek adjudication on the basis of a comparative efficacy at the interim stage since the claim of superiority can be tested only at the time of trial. Reliance was placed on the Judgment "Hindustan Lever Ltd. vs. Colgate Palmolive (I) Ltd. reported in [ AIR 1998 SC 526 ]" (d) The impugned advertisement is a comparative advertisement and even the Samples Survey Report filed by the respondent would submit that the message conveyed in the impugned advertisement is that Spray and Gels other than Omnigel are "worthless, completely ineffective and useless." (e) The claim of the respondent that the applicant is not entitled to the equitable relief of injunction since the applicant and its affiliates had not acted in equity is totally misconceived and deserves to be rejected in limine. The filing of the case against the applicant's affiliates at Australia for indulging in unfair trade practise would not have comparing effect on the case on hand since the principles of equity, fair play and clean hands can relate only to the lis on hand. There are several litigations that have been lodged by the applicant, and some even filed against the respondent herein. This does not mean that the applicant has been estopped and becomes disentitled to initiate legal proceedings. (f) Considering the fact that the applicant has made similar claims in its advertisement, does not give a right to the respondent to make such disparaging statements. (g) The applicant has narrated the following benefits in respect of MOOV Advance Spray and Gel, in their advertisement: (a) Doctor recommended active ingredient; (b) Acts fast and provides long-lasting relief from acute pain; (c) Targets the pain and source; (d) Targets the source of pain and give long lasting relief from pain. (h) The applicant would submit that there has been no misleading claim on its part, since Diclofenac is a highly recommended pain relieving ingredient and the cream when applied provides immediate relief from back pain. The applicant has not held out unlike the respondent that the pain would be eliminated from its root. (i) The applicant would further contend that the impugned advertisement crosses the line of legitimate comparative advertisement since the depiction in the impugned advertisement shows that the applicant's product has been completely ineffective in relieving pain and acts as an ordinary Balm and Gel. (i) The applicant would further contend that the impugned advertisement crosses the line of legitimate comparative advertisement since the depiction in the impugned advertisement shows that the applicant's product has been completely ineffective in relieving pain and acts as an ordinary Balm and Gel. (j) In the advertisement, the chemist is seen pushing away the MOOV spray and the other competitive pain relieving products which clearly crosses the line of legitimate comparative advertisement. Further the advertisement, by showing the other balms and gels as being ordinary and ineffective, amounts to a genetic disparagement which is also impermissible. The impugned advertisement clearly depicts MOOV Spray and other products though it is not shown in its original packing. However, the product that is displayed in the impugned advertisement is clearly distinguishable and it can be easily identified that the product is MOOV Spray, more particularly since the bottle is shown with a purple cap, the purple cap was the signature cap of the applicant. (k) The contention of the respondent is that the applicant's product is totally useless and in the counter and the arguments, the respondent has put out a case that the Spray which is shown in the impugned advertisement is an Ayurvedic product not containing Diclofenac. The further argument of the respondent that the impugned advertisement compares Omnigel with other products which do not contain Dyclofenac and is therefore not a disparagement, would also not help the respondent since the impugned advertisement does not set out that the other products do not contain Dyclofenac. (l) The applicant would further submit that the respondent cannot compare two different products and it is only a like product that can be compared. The comparison to MOOV in the advertisement is unfair since the applicant's product MOOV was an Ayurvedic pain relieving product and not Allopathic. The instant storyline clearly indicates that the intent of the respondent is only to denigrate the product of the applicant by claiming it as worthless, ineffective and useless. Such denigration is not permissible. (m) The applicant would rely on the following judgments in respect of the above propositions: 1. "Hindustan Lever Ltd. vs. Colgate Palmolive (I) Ltd. reported in [ AIR 1998 SC 526 ]" 2. "Hindustan Unilever Ltd. vs. Proctor and Gamble Home products Ltd. reported in [2010 (43) PTC 460]" 3. Such denigration is not permissible. (m) The applicant would rely on the following judgments in respect of the above propositions: 1. "Hindustan Lever Ltd. vs. Colgate Palmolive (I) Ltd. reported in [ AIR 1998 SC 526 ]" 2. "Hindustan Unilever Ltd. vs. Proctor and Gamble Home products Ltd. reported in [2010 (43) PTC 460]" 3. "Annamalayar Agencies vs. VVS and Sons Pvt. Ltd. reported in [2008(38) PTC 37 (Mad)]" 4. "Hindustan Unilever Ltd. vs. Gujarat Co-Operative Milk Marketing Federation Ltd. reported in [2017 (71) PTC 396 (Bom)]" 5. "Gillette India Lts. vs. Reckitt Benckiser (India) Ltd." (n) The applicant would also submit that the repeated telecast of the impugned advertisement would impact the mind of the viewer as well as his choice, which ultimately would have an impact on the applicant's product. The consumer who repeatedly watches the telecast of the impugned advertisement would believe the fact that the product of the applicant is worthless and ineffective and this would definitely influence the decision of the consumer while making the purchase. In support of this argument, the following Judgments have been relied upon: (1) "Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd. reported in [ 2010 (167) DLT 278 ]" 2. "Dabur India Ltd. vs. Colgate Palmolive India Ltd. reported in [ AIR 2005 Del 102 ]" 3. "Gillette India Ltd. vs. Reckitt Benckiser (India) Ltd. 4. "Hindustan Unilever Ltd. vs. Reckitt Benckiser (India) Ltd. reported in [ 2014 DLT 713 ]" 5. "Godrej Consumer Products Ltd. vs. Initiative Media Advertising reported in [2012 (114) Bom LR 2652]" 6. "Heinz India Pvt. Ltd. vs. Glaxo Smithkline Consumer Health Care Ltd. & Others " 7."Colgate Palmolive (India) Ltd. vs. Anchor Health and Beauty Care Pvt. Ltd. reported in [ 2008(4) LW 628 ]" 8. "Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd. reported in [ 2013 (200) DLT 563 ]" 9. "Paras Pharmaceuticals Ltd. vs. Ranbaxy Laboratories Ltd. reported in [AIR 2008 Guj 98]" (o) The applicant would therefore submit that they have made out a prima facie case for the grant of relief of injunction and balance of convenience is also in their favour and that if the injunction is not granted they would be put to immense hardship and irreparable loss. (B) Per Contra, Mr. (B) Per Contra, Mr. J. Sivanandaraj/Roshan Balasubramanian would make the following submissions: (a) The respondent would counter the applicant's case by first contending that the applicant has come to Court suppressing the facts that the plaintiff's product was an Ayurvedic product which did not contain Dyclofenac. The respondent would submit that the applicant had launched the gel containing Dyclofenac only in the month of July 2019 just six months prior to the suit and the spray containing Dyclofenac was introduced only in the month of February/March 2020 after the suit was filed. These factors have not been mentioned in the application and since there is suppression of material fact, the applicant is not entitled to the relief of injunction. (b) The respondent would rely on the judgment of the Supreme Court reported in "[ (2004) 7 SCC 166 ], SJS Business Enterprises Pvt. Ltd. vs. State of Bihar]" in support of the above contention. (c) The respondent would further submit that the claim of the applicant that the respondents have come forward with a false statement is without basis. The tag line "Jadd se dard ko mitai" and "Seekkiram Valiyayi Virattungal' is nothing but a company created tag line. It only seeks to educate the viewer about the action of Dyclofenac, which is anti-inflammatory and it addresses the inflammation underlying the pain. The inflammation being the root, this tag line has been adopted. (d) The respondent would further submit that the applicant, who has now introduced its Dyclofenac product, has advertised that it contains the doctor recommended active ingredient which provides fast and long lasting pain relief and targets the source which would vindicate the claim of the respondent. (e) The respondent would therefore submit that the applicant have themselves advertised that the pain is relieved at source. Therefore they cannot raise a contention that the respondent has come forward with a false statement. The respondent would therefore submit that the applicant is not entitled to the equitable relief of injunction for the following reasons: (i) they have come to Court with unclean hands; (ii) the person who is seeking equity should also do equity; (iii) a person whose case is based on a false suit should be thrown out at any stage of litigation. (iv) a person approaching the court without full disclosure of facts is not entitled to be heard on merits nor entitled to relief. (iv) a person approaching the court without full disclosure of facts is not entitled to be heard on merits nor entitled to relief. The litigant has to come to Court disclosing all the facts and cannot adopt a pick and choose attitude. (f) The next defense raised by the respondent is that, nowhere in the impugned advertisement has the applicant's product been depicted and therefore there is no cause of action in the above suit. The product depicted in the advertisement has a grey cylinder, with a light purple cap and with no branding. The applicant's product MOOV pain reliever is contained in a deep dark purple bottle with a deep dark purple cap with a significant branding. This does not match the colour-scheme of the product displayed in the advertisement. The MOOV pain relieving spray has an indenture distinguishing the neck from the body of the bottle whereas the cap of grey product, does not have any indenture on the neck and is completely cylindrical. However, no packing of any sort has been shown in the advertisement. The applicant's MOOV Advanced Spray which contains Dyclofenac, was launched in the month of February/March 2020 and it is packed in a white bottle with a purple cap. Further, the applicant has not produced any evidence to show that a common man would identify the applicant's product in the impugned advertisement. On the contrary, the respondent has conducted a consumer survey consisting of a very small group of 50 people in which only one person was able to identify MOOV. This study has been undertaken since the applicant has not taken any steps to do so. Further in the judgment of the Division Bench of the Calcutta High Court in the matter of "Reckitt and Colman of India Ltd. vs. Jyothi Laboratories Ltd. reported in (1999) 2CALLT 230(HC)", a similar survey was undertaken and relied upon by the Court to pass the Judgment. That apart, the only ground on which the applicant would rest its case is on the Purple Cap. There has been several judgments which have repeatedly held that no person can have a monopoly over the colour. (g) The respondent would submit that the claim of the respondent that Dyclofenac addresses the pain from the root is not a false or misleading statement. There has been several judgments which have repeatedly held that no person can have a monopoly over the colour. (g) The respondent would submit that the claim of the respondent that Dyclofenac addresses the pain from the root is not a false or misleading statement. The pain is caused by an underlying inflammation and as per the India pharmacopoeia, Dyclofenac is classified as an anti-allergic and anti-inflammatory drug which addresses the inflammation that causes the pain whereas the applicant's Ayurvedic products does not contain Dyclofenac. Therefore, considering the authoritative claim made in the pharmacopoeia which has statutory recognition, the claim made by the respondent is not an untruth. The respondent in very great detail referred to the various medical review articles on Dyclofenac and on a combined reading of the Articles as well as medical dictionary meanings of the word inflammation and counter-irritants would submit that: (i) Dyclofenac is an anti-inflammatory drug introduced for releasing pain in OA. (ii) When diclofenac is applied to the site of pain it penetrates the skin, reaches the inflamed area reduces inflammation and this controls pain. Once inflammation subsides, there will be no more pain. Therefore the respondent would submit that their claim that Dyclofenac removes the pain from the root stands vindicated. (iii) The respondent would submit that these intricate details cannot be captured in a 30 second advertisement and therefore the tag line in the advertisement, that the pain is removed from the root. (iv) The respondent would further submit that the claim of the applicant that the usage of the word "Sadharan" amounts to disparagement is absolutely misleading and baseless. The word has not been used in a malicious fashion and it only refers to those products that does not contain Dyclofenac. The only distinction that they seek to make is that their product contains Diclofenac whereas the other do not contain Diclofenac but only a counterirritant which does not address underlying inflammation and masks the pain with a burning sensation. (h) The fact that the applicant who has introduced MOOV Advance Gel with Diclofenac uses the terms "Acts fast and provides long-lasting relief from acute pain, Targets the pain and source, Targets the source of pain and give long lasting relief from pain" would only imply that the applicant themselves considers the non Dyclofenac products as "Sadharan". (h) The fact that the applicant who has introduced MOOV Advance Gel with Diclofenac uses the terms "Acts fast and provides long-lasting relief from acute pain, Targets the pain and source, Targets the source of pain and give long lasting relief from pain" would only imply that the applicant themselves considers the non Dyclofenac products as "Sadharan". The respondent would submit that since their advertisement contains the truth, it is the absolute defence against the disparagement. The claim of the respondent is supported by the statutory literature in the Pharmacopoeia as well as applicant's own documents. The following judgments have been relied upon by the respondents. 1. "Kaleesuwari Refinery Pvt. Ltd. vs. M.K. Agrotech Pvt. Ltd." 2. "Gillette India vs. Reckitt Benckiser (India Pvt. Ltd.)" 3. "Annamalayar Agencies vs. VVS and Sons Private Limited reported in [2008 (38) PTC 37 (Mad)]" (i) The respondent would submit that the Division Bench of this Court in the case of Gillette India had held that the depiction of a person flinging tubes from a counter contemptuously will not cause consumers to think ill of a product whereas in the instant case the pharmacist gently pushes aside the other products as being ordinary as they do not contain Dyclofenac. There is neither malice nor contempt displayed in the entire advertisement to other products. (j) The respondent would plead that there is no generic disparagement since both the plaintiff's and the defendant's products are of the same category. Since the respondent is manufacturer of topical pain relieving product, it cannot be disparaging the entire class when their goods fell within the same class. In the case of Gillette India, the Bench was faced with a manufacturer of razors depicting hair removing cream as dangerous and the product did not fall in the same category. Hence it was held that there was a generic disparagement. (k) The respondent would submit that the dominant intent of their advertisement is only to educate the consumers that their product contains Dyclofenac, which is an anti-inflammatory pain reliever, that acts on the inflammation unlike the other counter-irritants which only distracts the brain to mask the pain. (l) The respondent has only highlighted the greatness of its product and has not denigrated the product of the others. The respondent would submit that the applicant has approached the court with a plaint containing exaggerations. (l) The respondent has only highlighted the greatness of its product and has not denigrated the product of the others. The respondent would submit that the applicant has approached the court with a plaint containing exaggerations. The respondent would further submit that the advertisement has to be viewed as normal a viewer would, and not frame by frame as depicted by the applicant. Further, in the advertisement it was not only one product that was depicted, the advertisement has taken in a multiple bottles of different shape, sizes and colours and it is highly unlikely that a consumer would focus on one particular product in an advertisement that is drawn for few seconds in which this frame is for milli seconds. (m) The respondent would therefore submit that no prima facie case has been made out and the application deserves to be dismissed. Points for Consideration The point for consideration that emerge on a perusal of the pleadings and hearing the submission of the counsels are as follows: (a) Does the impugned advertisement directly/impliedly refer to the applicant's products and if so has it resulted in the disparagement of the plaintiff's products; and (b) Whether the respondent has made a false claim with reference to their product in the advertisement that it eliminates pain from the root? (c) Whether the applicant has come to Court with clean hands and made out a prima facie case for grant of orders of injunction. Discussion: 23. Advertisements are the mode adopted by manufacturers of products to sell / promote their product. The world today is commercialised and therefore advertisements form its backbone. The concept of advertisement is ancient and they trace their history to the steel carvings made by the ancient Egyptians. Thereafter, it had adapted to new mediums like the printed form, Television commercials etc and today advertisements have spread to the social medium. The reach of advertisement has therefore increased to encompass the society as a whole. On account of its far reach, advertisements have also evolved to a stage where the manufacturers have started focusing on creating a loyal following Advertisement not only sways the public towards a particular brand but could also result in a reduction in the market share of a manufacturer if the competitor puts up an advertisement disparaging the manufacturer's product. On account of its far reach, advertisements have also evolved to a stage where the manufacturers have started focusing on creating a loyal following Advertisement not only sways the public towards a particular brand but could also result in a reduction in the market share of a manufacturer if the competitor puts up an advertisement disparaging the manufacturer's product. However, legal procedure has recognised comparative advertisement so long as the product of the other is not disparaged or denigrated. The changing position adopted by the Courts of this Country has been captured in the catena of judgments starting from Reckitt and Colman India Pvt. Ltd. Vs. M.P. Ramachandran and another, Dabur India Ltd. Vs. Colortek Meghalaya Pvt. Ltd. to Hindustan Unilever Ltd. Vs. Reckitt Benckiser India Ltd. What emerges from a reading of the above judgments is that when deciding whether a comparative advertisement is disparaging and therefore actionable the Court should be convinced that the claim made in the advertisement is false and it is made with malice. It would be worthwhile in a lighter vein to recollect H.G. Well's quote on Advertising: "Advertising is legalised lying." In this background let us examine the case on hand. 24. It is the applicant's case in the affidavit filed in support of the petitions that the same denigrates/disparages the Applicant's product MOOV frame by frame. The applicant has narrated as to how in each frame their product has been depicted. I am hereinbelow briefly extracting these contentions: (a) The protagonists in the advertisement are a young couple, the wife is depicted as having chronic back pain issues who has already experimented with several pain relieving products including the MOOV spray. (b) The dissatisfaction of the couple is shown by the husband showing anger/hurt towards his wife for not using Omnigel and instead using other third party products including the Applicant's MOOV. (c) The protagonists husband is shown asking in an irritated/injured tone: " Did you apply Omnigel" (d) The protagonist wife suffers an embarrassment on account of a faux pas committed by her, as her chronic back pain has not been cured owing to repeated use of useless and ineffective third party products including the Applicant's MOOV. (e) She tells her husband "I told you I have a back ache". The husband respondents by saying "I told you to apply Omnigel". (e) She tells her husband "I told you I have a back ache". The husband respondents by saying "I told you to apply Omnigel". (f) The scene shifts to a pharmacist rejecting and pushing away/discarding third party products including the Applicant's MOOV branded Spray stating that the pain recurs repeatedly when ordinary balms and gels are used. The word 'Sadharan' is clearly intended to denigrate the Applicant's MOOV branded product and the depiction of the pharmacist pushing away/rejecting the competing products including the applicant's MOOV branded product clearly conveys the message that all other competing products are useless and ineffective and the pain returns again and again, irrespective of repeated application. 25. Therefore a reading of the Applicant's narrative would indicate that on seeing the impugned advertisement that viewer would know that a lady is suffering from a chronic back pain for which she has applied several pain relieving products including MOOV and the husband is angry/hurt that his wife has not used Omnigel despite him advising her to do so. The husband's faith in Omnigel is fortified by the statement of the pharmacist who while pushing away the competing products including the Applicant's MOOV branded product refers to them as 'Sadharan' i.e., Ordinary. 26. However contrary to the above narration in the entire advertisement till the 24th second there is no reference to any other product either by implication or otherwise. In the 24th second of the advertisement the pharmacist enters the frame where he gently pushes aside a few non-branded products stating that when ordinary balm/gels are used the pain would recover whereas the Diclofenac formula contained in Omnigel would remove the pain from its root. The pushing aside of the products is covered between the 24th to the 26th second. The products that are pushed aside does not contain any writing or labelling on them. I had viewed the entire advertisement which has been filed in a CD form as Doc. No. 14. The advertisement and its narration in the affidavit filed in support of the application till the 24th second, to put it mildly is an exaggerated/imaginative narration. It is only in the 24th second that other non-branded products are randomly placed on the table which pharmacist gently pushes aside while stating that the pain would recur repeatedly if ordinary balms/gels are used but the Diclofenac formula in Omnigel would remove the pain from the root. It is only in the 24th second that other non-branded products are randomly placed on the table which pharmacist gently pushes aside while stating that the pain would recur repeatedly if ordinary balms/gels are used but the Diclofenac formula in Omnigel would remove the pain from the root. The exact words used are . Omnigel Dylofenac formula which when translated means "When ordinary balm/gel are used the pain keeps recurring the dyclofenac formula in Omnigel eliminates the pain from the root". The non-branded products are shown in the advertisement only for 2 seconds from the 24th second to the 26th second. 27. Both sides have cited several judgments in support of their contention and from a reading of the same it can be seen that the judgment of the Calcutta High Court in the matter of "Reckitt and Colman of India Ltd. vs. M.P. Ramachandra reported in: 1999 PTC (19) 741" and the 5 principles set out therein that has been the forerunner in deciding cases relating to disparagement for a score and one year. 28. The March of law relating to disparagement actions has been succinctly dealt with by this Court. In the judgment reported in " 2008 (4) LW page 628, Colgate Palmolive (India) Ltd. vs. Anchor Health and Beauty Care Pvt. Ltd.", Justice V. Ramasubrmaniam, had in great detail discussed the March of Law relating to disparagement actions in the United States, United Kingdom and the European States and the various methods/Regulatory bodies by which advertisements are regulated. The Learned Judge had after discussing the above held as follows: "49. The above developments make it clear that a after De Beers case (1975 (2) All.E.R 599), much water has flown in U.K., and hence all the 5 principles enunciated in the earliest case in Reckitt Colman Vs. M.P. Ramachandran by the Calcutta High Court in 1996 and followed by the other High Court until recently, may not, in my humble opinion, reflect the development of law on the issue, as on date, world vide. To recapitulate, the first 2 principles laid down in M.P. Ramachandran's case were (1) that a person is entitled to claim that his product is the best in the world, even if it is untrue and (2) that while doing so he would also be entitled to claim that his product is better that his competitor's, even if it is untrue. But with so many regulatory measures and legacy regulators introduced in the recent past, it may not now be possible for manufacturers and marketers of goods and services, even in developing countries, to make "false, misleading and harmful" claims in advertisements. When the law has thus taken a swing from one extreme to the other even in England, it is not possible now to follow those 5 principles laid down in the above decisions, on the basis of English precedents." 29. The Learned Judge also traced the codified law in India regulating Advertisements, which in the Learned Judge's words "are statutory enactments'. After discussing the provisions in their enactments and the right to free speech granted under Act 19(1)(a) of the Constitution of India, the Learned Judge held that advertisement being free commercial speech should be juxtaposed with the right of the consumers to know and receive the correct information. The Learned Judge finally laid down the following principles for dealing with an action in respect of disparaging advertisements. "68. In fine, the following principles emerge namely; (a) Publication of advertisements being free commercial speech, is protected by Article 19(1) (a) of the Constitution, as per the dictum of the Apex Court in Tata Press case. (b) There are a few restrictions on the aforesaid right, which would satisfy the test of reasonableness under Article 19(2). These restrictions could be traced to the definition of the term "unfair trade practice", in Section 36 A of the Monopolies and Restrictive Trade Practices Act, 1969 and Section 2(1)(r) of the Consumer Protection Act 1986. (c) Therefore, only if a case of disparaging advertisement falls within the definition of the term "unfair trade practice", an action may lie. It would lie before a Consumer Forum, at the instance of a consumer or a group of consumers or a voluntary consumer association or even the Central or the State Government (see the definition of the word "complainant" under Section 2(1)(b) of the Consumer Protection Act). It may even lie before the MRTP Commission. (or the Competition Commissioner after it is constituted). (d). It may even lie before the MRTP Commission. (or the Competition Commissioner after it is constituted). (d). An action may lie against such an advertisement before a civil court both at the instance of a manufacturer or marketer and at the instance of a consumer (since section 3 makes the Consumer Protection Act an additional law and not a law in derogation of any other law), provided that the advertisement in question contains a false representation coming within the 4 corners of sub-clauses (i) to (x) of clause (1) of section 2(1) (r) of the Consumer Protection Act. (e) A careful scrutiny of all the sub-clauses in section 2(1)(r) of the Consumer Protection Act would show that 4 types of representations are categorised as "unfair trade practices" namely (1) false representations falling under sub-clauses (i), (ii) and (iii); (2) representation which may not necessarily be false but are nevertheless incorrect coming under sub-clauses (iv) and (v); (3) warranty or guarantee coming under sub clauses (vii) and (viii); and (4) false or misleading representations falling under sub-clauses (vi), (ix) and (x). If an advertisement contains a false representation within the meaning of sub clauses (i) to (iii) or an incorrect representation within the meaning of sub clauses (iv) and (v) or a warranty or guarantee within the meaning of sub-clauses (vii) and (viii) or a false or misleading representation or fact within the meaning of sub clauses (vii), (ix) and (x) of clause (1) of section 2(1)(r) of the Consumer Protection Act, then an action may lie. (f) In the light of the above statutory prescription, it is doubtful if false claims by traders, about the superiority of their products, either simplicitor or in comparison with the products of their rivals, is permissible in law. In other words, the law as it stands today, does not appear to tolerate puffery anymore. I do not know if "Puffing" which is only a twin sister of "buffing", permitted by English courts in the pase, still has the sanction of law even in England, after the advent of 'legacy regulators' such as CAP, Ofter, Ofcom, Clearcase etc., and the issue of The Control of Misleading Advertisement Regulations, 1988 (as amended by Regulations of 2000) and the enactment of the Communications Act, 2003). (g) An advertisement which tends to enlighten the consumer either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products, is for the public good and hence cannot be taken to be an actionable wrong, unless 2 tests are satisfied namely (i) that it is motivated by malice and (ii) that it is also false. This is on account of the fact that a competitor is more well equipped to make such an exposure than anyone else and hence the benefit that would flow to the society at large on account of such exposure, would always outweigh the loss of business for the person affected. If 2 trade rivals indulge in puffery without hitting each other, the consumer is misled by both, unless there is increased awareness or Governmental intervention. On the other hand, if both are restrained from either making false representations/incorrect representations/misleading representations or issuing unintended warranties (as defined as unfair trade practice under the Consumer Protection Act), then the consumer stands to gain. Similarly, permitting 2 trade rivals to expose each other in a truthful manner, will also result in consumer education." 30. The Learned Judge ultimately found the respondent guilty of Unfair Trace Practice because of the false and misleading information that the advertisement purported to propagate but did not find the respondent guilty of disparagement. This order was not challenged further and has attained finality. 31. It is a decade and two since this order has been pronounced and the medium/mode of advertisements have developed further. The underlying ratio laid down in all the judgments is that a comparative advertisement becomes disparaging when it shows the other's product in poor light or as being ineffective. Puffery has also been recognised as permissible so long as the person putting up the advertisement does not slander the others product. It is open to the person to state that his products are the best. However in the judgment in Colgate vs. Anchor, supra the Learned Judge has after dismissing the Provisions of the Consumer Protection Act held that puffery in the light of the law as it stands today cannot be tolerated. 32. In the above backdrop let me analyse the points for consideration. However in the judgment in Colgate vs. Anchor, supra the Learned Judge has after dismissing the Provisions of the Consumer Protection Act held that puffery in the light of the law as it stands today cannot be tolerated. 32. In the above backdrop let me analyse the points for consideration. (a) Does the impugned advertisement directly/impliedly refer to the applicants products and if so has it resulted in the disparagement of the applicant's products? In order to answer this point the impugned advertisement is frame by frame reproduced hereinbelow with the transcript of the voice over in the Hindi language and its translation: "The Couple visits the Fair" "The husband plays Hoopla" "He throws the Hoopla" "He does not succeed" Husband asks his wife to play saying "Try "(Do try). Wife tells her husband: "" (Once again I have a pain in my back). Husband tells his wife: "OMNIGEL ?" (Have you not applied Omnigel)." She quickly takes the Hoopla saying (give it)" "She suffers an intense pain in her back" "Hoopla falls on the Hoopla man" Wife tells her husband: (I told you I had a pain in my back) Husband tells his wife: " OMNIGEL" (I had told you to apply Omnigel)" "" (Applying an ordinary balm or gel) "" (will cause the pain to recur repeatedly) "OMNIGEL Diclofenac Formula (The Diclofenac formula in Omnigel removes the pain from its root) 33. As discussed supra, in Paragraph No. 26 the depiction of the non-branded products occurs between the 24th and 26th second of the impugned advertisement. The reference to the non-branded products by the pharmacist is from the 24th to the 27th second. In none of the preceding or succeeding frames reference is made to a third party's product. The dialogue between the protagonists, husband and wife only brings out the husbands utmost trust in the efficacy of the product Omnigel in relieving the pain. The husband does not make any reference to any other pain balm nor does he castigate his wife for using the third party products. Therefore nowhere in this interaction has there been a disparagement of the applicant's product. Coming to the scene involving the Pharmacist, the advertisement shows him gently pushing aside the non-branded products and stating that an ordinary balm/gel will result in the pain recurring repeatedly unlike the Diclofenac formula present in Omnigel. Therefore nowhere in this interaction has there been a disparagement of the applicant's product. Coming to the scene involving the Pharmacist, the advertisement shows him gently pushing aside the non-branded products and stating that an ordinary balm/gel will result in the pain recurring repeatedly unlike the Diclofenac formula present in Omnigel. When the pharmacist's statement is taken as a whole without breaking it frame by frame it is clear that the use of the word "Sadharan" (ordinary) is only in the context of the non-branded products not containing the Diclofenac formula in their product. The statement does not state that the products are ineffective against pain but only seeks to state that they reduce the pain temporarily and have to be used repeatedly to alleviate the pain. 34. In the judgment "Reckitt and Coleman of India Ltd. vs. M.P. Ramachandran & others" which as stated supra has been the trend setter for the line of decisions on disparagement, the learned Judge has recognised the right of the tradesman to declare that his goods are the best in the world and while saying so could compare the advantages of his good with that of his competitors and say that his goods are better however in doing so the Tradesmen cannot slander the goods of his competition. This ratio has been followed in all the succeeding judgments. In the instant case, the applicant would state that the impugned advertisement disparages/denigrates their product MOOV in the following manner: (a) The bottle with a purple cap is depicted by the pharmacist; (b) The pharmacist by pushing away third party products including the applicant's MOOV and calling them SADHARAN. These contentions can be answered by referring to the Judgments herein below. 35. In Marico Ltd. vs. Dabur India Ltd. (order in I.A. No. 01 of 2019 in Commercial IP Suit (L) No. 1262 of 2019), the Bombay High Court was called upon to injunct Dabur India Ltd. from airing the advertisement in respect of their Amla Hair Oil. The plaintiff have contended therein that they have been marketing the NIHAR range of Amla Hair Oil in a particular shape and size of bottles. In the Defendant's advertisement both in the print and visual media, the defendant had called all other brands of Amla Oil as Sastha (Cheap) Oil. The plaintiff have contended therein that they have been marketing the NIHAR range of Amla Hair Oil in a particular shape and size of bottles. In the Defendant's advertisement both in the print and visual media, the defendant had called all other brands of Amla Oil as Sastha (Cheap) Oil. This according to the plaintiff was denigrating the plaintiff's Amla Hair Oil as one of an inferior quality. The plaintiff had contended that the use of the word Sastha was disparaging. The Learned Judge refused to grant the injunction and observed as follows: "The shape, size, colour or colours of the bottle of disparaged product shown in the impugned advertisement cannot be said to be evoking, in any real sense, the memory of the plaintiff's product. Even, for that matter, the reference to 'Cheap Amla Hair Oil' cannot be said to evoke the memory of the plaintiff's product. As I have noted above, it is difficult to hold that what are disparaged in the impugned advertisement are lesser price products as a class. So also, the plaintiff has not shown at this prima facie stage that the phrases "Cheap hair Oil" or "Sasta hai tel" used in the advertisement were indeed an idea associated solely with the plaintiff's product" 36. The Delhi High Court in the judgment "Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd. & Others reported in - ILR (2010) IV Del 489" was called upon to consider whether the commercial of the respondent in respect of their mosquito repellent Good Knight repellent disparages the Appellant's product Odomas. The Single Judge had refused to grant an order of injunction by holding that the commercial does not fall within the tort of "malicious falsehood" and it was not directed against the Appellant. The matter was taken on Appeal where the order of the Learned Single Judge was confirmed. The impugned advertisement made reference to Mosquito Repellent creams which if applied would cause rashes and the risk of allergy apart from being sticky. The appellant contended that this statement shows the product of the applicant in poor light. The matter was taken on Appeal where the order of the Learned Single Judge was confirmed. The impugned advertisement made reference to Mosquito Repellent creams which if applied would cause rashes and the risk of allergy apart from being sticky. The appellant contended that this statement shows the product of the applicant in poor light. The Bench after considering the line of judgments on disparagement observed as follows: "Having said this, we are of the opinion that having gone through the commercial not only in its text (as reproduced above) but also having watched it on a DVD there is absolutely nothing to suggest that the product of the appellant is targeted 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." The above observation in my view applies on all fours to the instant case. 37. In the judgment, Gillette India Pvt. Ltd. vs. Reckitt Benckiser (India) Pvt. Ltd.," the Division Bench of this Court was considering whether the electronic audio video advertisement made by the appellant who was manufacturing razors disparaged the product manufactured by the respondent viz; depilatories (Hair Removal Cream) under the brand named VEET. The Bench after "discussing the case laws on the point observed as follows : “97. Whether an advertisement is disparaging or not would depend on several factors, for which each advertisement would have to be judged on its own merits, on consideration of the overall impact of the picture that is portrayed, the language used, the histrionics, the gesticulations, the movements, acrobatics, catch phrases, hilarity or other catchy screen shots. While humour, hilarity or even ridiculing to highlight the advantages of one's own product may be permissible, ridiculing services and products of another would amount to disparagement. 98. To decide whether an advertisement is disparaging, the Court has to consider (i) the intent of the commercial advertisement; (ii) the message sought to be conveyed; and (iii) the mode and manner of conveying the message. Condemning the goods and services of a competitor or ridiculing the same or showing the same as substandard would amount to disparagement. 99. Of course, as stated above, mere puffing up of one's products or services in comparison to those of others would not constitute disparagement. Condemning the goods and services of a competitor or ridiculing the same or showing the same as substandard would amount to disparagement. 99. Of course, as stated above, mere puffing up of one's products or services in comparison to those of others would not constitute disparagement. It may be permissible for an advertiser to compare the technology or the formula of the products of others in an attempt to impress upon viewers the superiority of the goods and articles advertised over those of others. In the process, an advertiser may even brand the technology and/or formula applied by others as obsolete compared to the more modern technology or formula of the advertiser, but without denigrating or disparaging the products of others. 108. In a disparagement suit, the Court would have to examine whether the object of the advertisement is to highlight the benefits of the products of the advertiser in comparison to those of others or to denigrate the products of others, which would amount to defamation." 38. Analysed from the above stand point I am of the view that the impugned advertisement does not disparage the product of the respondent. Further nowhere in the advertisement has the product of the respondent been referred to and even the scene where non-branded products are shown is just for two seconds and an ordinary consumer/viewer would just gloss past the above scene. It is only the most discerning viewer who would notice it. The court has to consider the issue only from the stand point of a normal/average viewer. The impugned advertisement only seeks to highlight the fact that the respondent's product contains Diclofenac which addresses the root of the pain. Therefore the first point of consideration is answered in favour of the respondent. 39. The next point which falls for consideration is whether the respondent has made a false claim with reference to their product in the advertisement by claiming that it eliminates pain from the root. 40. Both sides have produced extensive material in support of their contentions, the applicant that Diclofenac will not eliminate pain from the root and the respondent that it addresses the source of the pain which is the inflammation. The impugned advertisement would contain a statement of the pharmacist which is reproduced in Hindi hereinbelow: which translated means "Removes/eliminates the pain from the root ". The impugned advertisement would contain a statement of the pharmacist which is reproduced in Hindi hereinbelow: which translated means "Removes/eliminates the pain from the root ". When the entire storyline is considered the message that is conveyed is not that the pain will be uprooted but that the pain will be addressed at the root/source and eliminated. The pharmacist does not use the word (uprooting) which clearly expresses the intent of the respondent to convey the message that their products eliminates the pain at its source. It is also seen that the applicant's have themselves advertised their product as giving a long lasting relief by targeting the source of pain. They have advertised on the efficacy of the diclofenac formula to address and relieve pain. This point is also answered against the applicant. 41. The third point for consideration is whether the applicant has come to Court with unclean hands. 42. The respondent has submitted that at the time of the filing of the suit the applicant had only introduced MOOV Advance containing Diclofenac in its gel form which is sold in a white tube with a white cap. This tube is not shown in the impugned Advertisement. The spray was introduced only after the filing of the suit. These facts admittedly are not stated in the plaint or the affidavit filed in support of the applications. This is a deliberate suppression on the part of the applicant. The applicant's product then in the market was not in the same genre of the respondent i.e., the applicant's products are Ayurvedic not containing Diclofenac whereas the respondent's product contains Diclofenac. 43. The next false averment made by the applicant relates to the statements attributed by the applicant to the story board. At the commencement of the discussion at paragraph. No. 24 I have narrated the statements made by the applicant in the Application. If the same is read in conjunction with the frame by frame story board extracted by me in Paragraph No. 32 it would be clearly evident how the applicant has twisted the statements out of context and totally contrary to what has been depicted to snatch an interim order. It is an axiomatic principle of law that a person who seeks an order of injunction should come to Court with clean hands. The above factors would clearly indicate that the applicant has suppressed material facts from Court. It is an axiomatic principle of law that a person who seeks an order of injunction should come to Court with clean hands. The above factors would clearly indicate that the applicant has suppressed material facts from Court. This point is also answered against the applicant. 44. Therefore on a conspectus of the above, the applications are dismissed.