Moov moves Supreme Court in disparagement suit by Zandu balm

The Supreme Court is seized of a disparagement dispute between two pain relieving ointments, Moov cream and Zandu balm..The case is an appeal filed by Reckitt Benckiser (Petitioner), the manufacturer of pain relieving ointment Moov, challenging a Kolkata High Court decision. The High Court had confirmed the order of the trial court whereby the Petitioner was stayed from telecasting an advertisement in which it had stated that its product Moov had twice the number of active ingredients compared to the “leading pain reliever”..Consequently, a suit was filed by Emami Limited (Respondent), initially before the Civil judge claiming that the said TV commercial is disparaging its product “Zandu balm” for which Emami holds a registered trademark..The Petitioner had opposed the same on the grounds that the Civil judge does not have the jurisdiction to try a suit for disparagement of registered trademark and the same can be filed only before the District Judge. The said ground was accepted by the High Court whereupon the Respondent filed a fresh plaint before the District judge. This was notwithstanding the Petitioner’s claim that the offensive part of the TV Commercial was edited and removed..In the fresh plaint, the Respondent had sought relief under the Trademark Act and Copyright Act which it had not raised in its suit before the Civil judge..The District judge had allowed the prayer for interim injunction and restrained the Petitioner from using the impugned TV advertisement. The appeal to the Calcutta High Court against the said order was also dismissed prompting the appeal to the Supreme Court..Before the Supreme Court, the Petitioner has contended that the District judge passed his order without relying on the written submissions and materials placed on record by the petitioner because the Petitioner’s advocate expressed his inability to argue the application on the date fixed for hearing and sought adjournment. It is the Petitioner’s case the trial court was not justified in refusing to consider the written submission for that reason alone..“The Trial court based the order of temporary injunction entirely on the pleadings and arguments of the contesting respondent herein and did not take into consideration the defence of the petitioner herein..The Petitioner has further contended that the burden of proof in case of disparagement is on the plaintiff and that temporary injunction was granted even though the Respondent had not established that impugned advertisement is disparaging. The petitioner has also contended that truth is a defence in an action for disparagement and the claims made in the advertisement about the presence of active ingredients have been admitted by the Respondent Emami..The petition, sets out, inter alia, the following grounds:.“The Hon’ble Division Bench has erred by not considering that it is a settled principle of law that burden of proof in a case of disparagement is on the plaintiff to show that the advertisement impugned has been actuated by malice and the statements made therein are untruthful and false…..The Hon’ble Division Bench erred in confirming the temporary injunction granted by the Trial court (capriciously and perversely) while completely ignoring the settled principles of law regulating the grant of temporary injunctions..The Hon’ble Division Bench has erred in confirming the temporary injunction even though admittedly the purportedly offending portion of the TV advertisement was altered before the temporary injunction was passed by the Trial Court and confirmed by the Hon’ble High Court.The Hon’ble Division Bench erred in not appreciating that truth is a defence in an action for disparagement inasmuch as irrefutably the claim in the advertisement is that the Petitioner’s product has double the number of active ingredients as compared to the leading balm and the same is admitted by the Contesting Respondent in its pleadings and written submissions.”.The Petitioner has further contended that since neither the packaging of Respondent’s product which was registered under the Trademarks Act nor the artistic mark Zandu Balm/ Zandu over which the Respondent is claiming ownership under the Copyright Act has been shown in the advertisement which was aired by the Petitioner, there is no infringement of any trademark or copyright by the Petitioner..On the above, grounds the Petitioner has prayed for setting aside the judgment of the High Court and grant a stay of the High Court judgment in the interim till the matter is finally decided..When the matter was heard on November 2 by a Bench comprising Justice AK Sikri and Justice Rohinton Fali Nariman, the Court had issued notice to Emami..Advocate CM Lall, R Jawahar Lal, Nancy Roy and Suruchii Agarwal are appearing for Moov. Senior Advocates Gopal Jain and KV Viswanathan along with a team of lawyers from Khaitan & Co. are representing Zandu..The case will now be heard in the second week of February.