Dabur India Limited v. Colgate Palmolive India Ltd., 2005 Case Summary/Brief

Plaint/Facts

An action for the infringement of the registered trademark under S.29(8) of the Trade Marks Act, 1999 was raised by the plaintiff.
The suit was filed over a visual advertisement launched by the defendants for their product which was allegedly disparaging the rival product of the plaintiff.
In the advertisement, a cine-star has stopped a person from buying "Dabur Lal Dant Manjan Powder" by showing that the powder is more abrasive and dangerous as compared to the defendants' product. As a result of the advertisement, the plaintiff's share in Ayurvedic tooth powder declined from earlier 80%.

The advertisement doesn't identify or refer to the plaintiff's product.
The defendants are entitled to point out the defects in the rival product while praising its own product.
The criticism was based on the studies conducted in the USA which had not been doubted. Also, the plaintiff did not deny the assertions made in the advertisement.
The defendants agreed to drop the red container/bottle which allegedly identifies the plaintiff.
The balance of convenience is in favor of the defendants as they have the right to disclose to the public the injury being caused by deleterious products.
The meaning of disparagement includes a false statement. Since the defendant's statement was not false, it can't be said to be disparaging. They relied on Salmond on Torts, which held that "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".
By relying on Carter-Ruck on Libel and Slander they contended that an action for libel arises only when a false statement disparages the goods as well as the trader.
By relying on Eastwood v. Holmes they stated the disparagement must be made towards a particular person or product and not a class of persons/products.
By relying on the Bastobel Paints case they stated, that a defamatory statement shall not be restrained if the person is ready to justify in the court of action unless it is obviously untruthful and libelous

The identity of the product can not be decided at this stage.
The 4th principle set out in the Reckitt Coleman and Dabur India case prevents the defendants from slandering their rival products as bad and inferior.
The defendant's contentions that the assertions were not denied can not be sustained as the averments in para 15&16 of the plaint clearly mention that the advertisement was dubious, deceptive, illogical, and irrational.
Even in the case of a general criticism made for a class of product, disparagement is possible as held in Dabur's judgment following the Reckitt Coleman judgment.
The generic disparagement of a rival product without specifically identifying the rival product is equally objectionable.
The Bastobel Paints case was related to libel and not commercial advertisement. Also, it is not binding on us, since it is an English judgment.
The balance of convenience is in favor of the plaintiff as the effect of the advertisement aired can not be repaired readily and easily.
Since the statement was made by a well-known cine star, it will definitely have an immediate impact on the minds of the viewer and possible purchaser. The plaintiff has thus made a primary facie case.