TABLE OF CONTENTS

SR. NO. PARTICULARS PAGE NO.

1. List of Abbreviation 1

2. Index of Authorities 2-3

3. Statement of Jurisdiction 4

4. Statement of Facts 5

5. Statement of Issues 6

6. Summary of Arguments 7

7. Arguments Advanced 8-12

8. Prayers 13

0
 LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

ASCI Accounting Standards Council of India

Del Delhi

DLT Delhi Law Times

i.e That is

Ltd Limited

Mad. Madra

Ors. Others

PTC Patent and Trade Mark Cases

Pvt Private

s. Section

SC Supreme Court

SCC Supreme Court Cases

TVC Television Commercial

u/a Under Article

u/s Under Section

UOI Union of India

Vs, v. Versus

1
 INDEX OF AUTHORITIES

CASES
Allagapuram R. Mohanraj & Ors. Vs. Tamil Nadu Legislative Assembly 11
AIR 2016 SC 867
Dabur India Ltd. Vs. Colgate Palmolive India Ltd 10
AIR 2005 Delhi 102
Gillette India Limited Vs. Reckitt Benckiser (India) Pvt. Ltd. 10
2018 SCC OnLine Mad. 1126
Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another Vs. Union of 11
India and Others
AIR 1960 SC 553
Havells India Ltd Vs. Amritanshu Khaitan & Ors. 8
2105 SCC OnLine Del. 8115: (2015) (62) PTC 64
K.S. Puttaswamy & Anr. Vs. Union of India 12
(2017) 10 SCC 1
Pepsi Co. Imc. And Ors. Vs. Hindustan Coca Cola Ltd. and Anr. 10
2003 (27) PTC 305 Del.
Reckitt Benckiser (India) Ltd. V.s Hindustan Unilever Ltd. 11
200 (2013) DLT 563

STATUTES
The Constitution of India

The Trade Marks Act, 1999

The Consumer Protection Act, 2019.

2
 BOOKS
Constitution Law of India D.D. Basu

Constitution of India M.P. Jain

Consumer Protection Law & Practice Taxmann

ONLINE SOURCES
1. www.scconline.com

2. www.manupatra.com

3. www.indiankanoon.com

4. www.indianlegalservice.com

5. www.lexology.com

3
 STATEMENT OF JURISDICTION

The Plaintiff has approached the Mumbai District Consumer Forum under sections 17,
39(1)(l), 39(1)(m) and 39(1)(n) of the Consumer Protection Act, 2019.

Section 17: Complaints to Authorities

A complaint relating to violation of consumer rights or unfair trade practices or false or
misleading advertisements which are prejudicial to the interest of consumers as a class,
may be forwarded either in writing or in electronic mode, to any one of the authorities,
namely, the District Collector or the Commissioner of regional office or the Central
Authority.

Section 39: Findings of District Commission

(1) Where the District Commission is satisfied that the goods complained against suffer
from any of the defects specified in the complaint or that any of the allegations
contained in the complaint about the services or any unfair trade practices, or claims
for compensation under product liability are proved, it shall issue an order to the
opposite party directing him to do one or more of the following, namely:-
(l) to issue corrective advertisement to neutralize the effect of misleading
advertisement at the cost of the opposite party responsible for issuing such
misleading advertisement;
(m) to provide for adequate costs to parties; and
(n) to cease and desist from issuing any misleading advertisement.

The present memorial on behalf of the Plaintiff sets forth the facts, contentions and

4
 arguments in the present case.

STATEMENT OF FACTS

BACKGROUND

HealthyBody (Plaintiff’s Health Drink) is one of the key brands in the health food drinks
variety available in India. It is a brand owned by the Healthy Products Ltd (Plaintiff).

It claims to have been clinically proven to make kids who drink this beverage regularly
taller, stronger, and sharper. It further asserts that regular consumption of HealthyBody
combined with a healthy diet as well as a healthy lifestyle can lead to quantifiable
enhancement in the growth and development of the child along with better concentration
power.

Swasth (Defendant’s Health Drink), on the other hand, is a powdered milk energy drink
which is again preferred in many Indian households. It is a brand owned by Body Wellness
Products Limited (Defendant).

In mid 2020 Swasth aired an advertisement and declared that one cup of Swasth was
equivalent to two cups of HealthyBody, thus providing the same amount of protein in one
cup of Swasth that HealthyBody furnished in two cups.

5
 STATEMENT OF ISSUES

1. Whether the Defendants TVC/ Advertisement misleads the Consumers?

2. Whether the Defendants TVC/ Advertisement disparage the Plaintiffs product and
tarnish their image?

3. Whether a TVC/Advertisement be protected under Article 19(1)(a) of the Indian

Constitution as a form of speech?

6
 SUMMARY OF ARGUMENTS

1. Whether the Defendants TVC/ Advertisement misleads the Consumers?

The plaintiff contends that the TVC or the advertisement compared only one
ingredient of the product and was trying to misguide the consumers. This generated
incertitude and perplexity in the minds of the customers by giving a fallacious
implication to them regarding their product thereby misleading the consumers by
creating undue influence upon the minds of the consumers.

2. Whether the Defendants TVC/ Advertisement disparage the Plaintiffs product

and tarnish their image?

The plaintiff contends that the intention of the Defendant behind the airing of the
TVC or advertisement was only to disparage the plaintiffs’ product. Though the
Defendant may be entitled to puff its product but it is now allowed to deprecate the
product of other parties. The mala fide intention of the defendant in telecasting the
impugned TVC/advertisement can be evident wherein the defendant compared one
cup of its product with two cups of the plaintiffs’ product. Thus, it can be
concluded that comparative advertising cannot be permitted which criticizes the
product or the trademark of the competitor.

3. Whether a TVC/Advertisement be protected under Article 19(1)(a) of the

Indian Constitution as a form of speech?

The plaintiff contends that the right under Article 19(1)(a) is only available to the
citizens of the country and not the corporate entities. Also, promotion and
advertisement of one’s own business cannot be a part of the Freedom of Speech
guaranteed by the Constitution.

7
 ARGUMENTS ADVANCED

1. Whether the Defendants TVC/ Advertisement misleads the Consumers?

The plaintiff humbly submits that the TVC or the advertisement compared only one
ingredient of the product and was trying to misguide the consumers. This generated
incertitude and perplexity in the minds of the customers by giving a fallacious
implication to them regarding their product thereby misleading the consumers by
creating undue influence upon the minds of the consumers. The plaintiff further states
that the comparative advertising increases public awareness but at the same time it
should not mislead the customers. It is a settled law that an advertiser can call his
product the best, but at the same time, cannot rubbish the products of a competitor 1.
Thus, a certain amount of disparagement is implicit, yet the same is legal and
permissible as long as it does not mislead. The Trademarks Act, 1999 has
incorporated certain provisions which are related to comparative advertising and
trademark infringement i.e, S. 29(8) and S. 30(1). Comparative advertising is
permissible, with respect to certain limitations as to unfair trade practices which are
imposed by S. 29(8). S. 30(1) strengthens its position.

The plaintiff further reproduces the Code of Conduct, 1985 of the Advertising
Standards Council of India (ASCI) which specifies certain guidelines to be kept in
mind while promoting their goods through advertisements. It states that:
- There must be honest representations;
- The advertisement must not be offensive to the general public;
- The advertisement should not be used for the promotions of products, hazardous
or harmful to society or to individuals particularly minors and to a degree
unacceptable to the society at large;
- An advertisement must not hamper competition in anyway.

8
1.
Havells India Ltd Vs. Amritanshu Khaitan & Ors., 2015 SCC OnLine Del 8115: (2015)
(62) PTC 64
Worldwide, comparison between the products is in the same size or the same
measurement and a comparison other than that of the same size would be
misleading. The fact that the serve size disclaimer is mentioned or not in the TVC/
advertisement the same gives a misleading message to the public in general. In the
present case the TVC/advertisement aired and declared that the defendant’s product
is double to that of the plaintiffs.

The plaintiff further states that despite having a number of other nutrients, a
misleading TVC/ advertisement had been issued only concentrating towards the
protein content despite the fact that both the drinks are not protein supplements but a
health drinks.

Thus this Court is required to see that though a comparative TVC/ advertisement is
legal and permissible however, the comparison cannot be false as the same has the
likelihood of causing confusion in the mind of the consumer who may be misled.
Therefore, it is humbly submitted that Defendants TVC/ advertisement misleads the
consumers.

2. Whether the Defendants TVC/ Advertisement disparage the Plaintiffs product

and tarnish their image?

The plaintiff contends that the intention of the Defendant behind the airing of the
TVC or advertisement was only to disparage the plaintiffs’ product. In the present
case the motive of the defendant to air the TVC or advertisement was to deprecate
the plaintiff’s product. Though in law the defendant may be entitled to puff its
product but it is not allowed to deprecate the product of its competitor or other
parties. The mala fide intention of the defendant can be seen in the impugned TVC
or advertisement which was aired showing a comparison that one cup of the
defendants’ product is equivalent to two cups of the plaintiffs’ product.

9
 ‘Disparage’ means to connect unequally; or to dishonor (something or someone) by
comparison; or to unjustly discredit or detract from the reputation of (another’s
property, product or business); or a false and injurious statement that discredits or
detracts from the reputation of another’s property, product or business.

In simple sense, disparagement means making a negative statement with respect to

the product of others to bring down the reputation of others and discourage the
consumer to deal with them.

There are certain factors that should be kept in mind while determining the question
of disparagement i.e.:
(i) The Intent of the commercial
(ii) The manner of the commercial
(iii) The story line of the commercial and the message to be conveyed by it2.

Further, generic disparagement of a rival product without specifically identifying or

pinpointing the rival product is equally objectionable. Clever advertising can indeed
hit a rival product without specifically referring to it. No one can disparage a class or
genre of a product within which a complaining plaintiff falls and raise a defence that
the plaintiff has not been specifically identified3.

In the present case the TVC or the advertisement was aired which forms a part of the
electronic media. There is a difference noted between electronic media and print
media while deciding cases on disparagement. It is stated that electronic media has a
greater power or a greater impact than leaves a lasting impression in the minds of the
viewers as compared to print media. “Catchy phrase, a well enacted skit or story
line, or even distinctive sounds or distinctive collocation of colours make a lasting
impact and more so, when viewed repeatedly”4.

Lastly, the concept of disparagement was explained by the Delhi High Court in the
case Reckitt Benckiser (India) Ltd. Vs. Hindustan Unilever Ltd which stated that ‘ a

10
2.
Pepsi Co. Inc. and Ors. Vs. Hindustan Coca Cola Ltd. and Anr., 2003 (27) PTC 305 Del
3.
Dabur India Ltd. Vs. Colgate Palmolive India Ltd. AIR 2005 Delhi 102
4.
Gillette India Limited Vs. Reckitt Benckiser (India) Pvt Ltd, 2018 SCC OnLine Mad 1126
manufacturer can make a statement for making his goods at best level and he also
makes statement for puffing of his goods and the same will not give a cause of action
to the other traders or manufacturers of similar goods to institute proceedings. In
doing so, there is no disparagement of the manufacturer’s goods. A manufacturer is
not entitled to say the competitor’s goods are bad as to puff and promote his goods’ 5.
Thus, it was concluded that comparative advertising cannot be permitted which
denigrates the product or trademarks of the competitor.

Thus, this Court is required to see that the defendants’ motive or intention behind the
airing of the TVC or advertisement was only to disparage the plaintiffs’ product and
tarnish their image in the eyes of the people.

3. Whether a TVC/Advertisement be protected under Article 19(1)(a) of the Indian

Constitution as a form of speech?

The Plaintiff humbly submits that the Right to Freedom of Speech u/a 19(1)(a) of the
Constitution is only available to a citizen of India and not to a corporate entity like the
Defendant.

Article 21 of the Constitution was available to every person but the rights u/a 19 of
the Constitution were available to the a citizen of India only6.
The right to publish and distribute commercial advertisements advertising an
individuals’ personal business could not be a part of freedom of speech guaranteed by
the Constitution7. In the present case since the impugned TVC or commercial was a
pure product of promotion exercise, the defendant did not have any inherent right to

11
5.
200 (2013) DLT 563
6.
Allagapuram R. Mohanraj & Ors. Vs. Tamil Nadu Legislative Assembly, AIR 2016 SC 867
7.
Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another Vs. Union of India and Others,
AIR 1960 SC 553

under Article 19(1)(a).

Also, under Article 21 of the Constitution, the plaintiff has a right to restrict commercial use
of its product or mark which denigrates its goodwill and reputation in its product or mark.
Article 21 of the Constitution had provided a person a right to control commercial use of
his/her identity and stated that the said right would also apply to a corporate entity like the
plaintiff.
‘Every individual should have a right to be able to exercise control over his/her own life and
image as portrayed to the word and to control commercial use of his/her identity. This also
means that an individual may be permitted to prevent others from using his image, name and
other aspects of his/her personal life and identity for commercial purposes without his/her
consent8.

Thus, this Court is required to see that the Right to Freedom of Speech u/a 19(1)(a) of the
Constitution is only available to a citizen of India and not to a corporate entity like the
Defendant. Hence, the Right of Freedom of Speech of the Defendant is not violated in
accordance with a TVC/ advertisement and should not be protected either.

12
8.
K.S. Puttaswamy & Anr. Vs. Union of India, (2017) 10 SCC 1

PRAYERS

Therefore, in light of the facts stated, issued raised, arguments advanced and authorities cited,
it is most humbly prayed and implored before the Hon’ble District Consumer Redressal
Forum, Mumbai that it may be please to:

(1) Restrain the Defendant, its directors, promoters, partners, officers, employees, agents,
distributors, representatives, assigns and other concerned, by an ex-parte ad-interim and
interim injunction from:
a) Issuing or otherwise howsoever communicating to the public or publishing the
Impugned Advertisement/TVC or any part thereof to be published or broadcasted or
communicated to the public or published in any media including digital/electronic or
social media or in any other manner disparaging the goodwill and reputation of the
Plaintiff and their products sold by the name HealthyBody.
b) Using any other indication whatsoever to associate with/depict the Plaintiff or their
products in its advertisements issued in any and all media whatsoever including the
electronic media;

(2) Cost of the application be awarded to the Plaintiff;

(3) Any other relief which the Hon’ble Forum thinks fit and proper in the circumstances of
the case be allowed in favour of the Plaintiff against the Defendant.

For this act of kindness, the Plaintiff shall duty bound forever pray.

13
PLACE: MUMBAI
DATE: S/d
Counsel for the Plaintiff

14