PINAKI CHANDRA GHOSE,J. - (1.) This appeal is directed against an ad-interim order dated 15th February, 2009 passed by the Hon'ble First Court refusing the prayer for injunction as prayed before the Court by the appellant and the Court has passed the following order : "By virtue of the aforesaid, no disparagement can be attributed to the respondent. While deciding such a dispute the perception of an average individual who is reasonably well informed and observant has been considered as the market targeted is not of illiterate persons. From a reading of the plaint it appears that although the petitioner has alleged disparagement but the economic loss suffered has been established. The suit was filed on 27th January, 2010 while according to the plaint the respondent has telecast its advertisement on and from 1st December, 2009 and the advertorial was published on 2nd December, 2009. Till the filing of the suit the petitioner has been able to show that it has sustained any economic loss by virtue of such advertisement. For no loss evidence or dip in its sales no interim order need be passed at this stage". The facts of the case briefly are as follows : On 28th January, 2010, the appellant/plaintiff filed a suit being C.S. No. 12 of 2010 (Hindustan Unilever Limited v. Procter and Gamble Home Products Limited ) inter alia praying for the following reliefs : (a) for leave under Clause 12 of the Letters Patent, 1865 and Order 2, Rule 2 of the Code of Civil Procedure, 1908 and (b) Decree of mandatory injunction directing the defendant to deliver up the master tape so that the same may be cancelled and destroyed; (c) Decree of perpetual injunction restraining the defendant, its agents, servants and directors from using the said master tape on the basis of which the impugned telecast has been made and from using the same for further telecast in any manner whatsoever; (d) Decree of permanent injunction do issue restraining the defendant, its directors, agents and servants from further publishing the advertisements contained in Annexure G and telecasting the impugned television commercials being Annexure F and Annexure H hereto or any other similar advertisement or telecasting; (e) Decree of perpetual injunction restraining the defendant, its directors, agents and servants from in any manner disparaging the plaintiff's products, namely 'Fair and Lovely' and 'Pond's White Beauty' and in any manner conveying to the public that the plaintiff's said products do operate from within the skin and do have glowing effect on the skin; (f) Injunction; (g) attachment before judgment; (h) Costs; (i) Further and/or other reliefs.
(2.) In the said suit on or about 1st February, 2010 the appellant/plaintiff took out an application being G.A. No. 243 of 2010 inter alia praying for the following reliefs: (a) Receiver be appointed to take into custody the master tape on the basis of which the impugned advertisements have been telecast through the major and leading T.V. Channels; (b) An order of mandatory injunction directing the respondent to deliver up the master tape so that the same may be cancelled and destroyed; c) An order of temporary injunction restraining the respondent, their agents, servants and directors from using the said master tape on the basis of which the impugned telecast has been made and from using the same for further telecast in any manner whatsoever; (d) An order of temporary injunction do issue restraining the respondent, its directors, agents and servants from further publishing the advertisements contained in Annexure G and telecasting the impugned television commercials being Annexure F and Annexure H hereto or any other similar advertisement or telecasting; (e) An order of temporary injunction restraining the respondent, its directors, agents and servants from in any manner disparaging the petitioner's products, namely 'Fair and Lovely' and 'Pond's White Beauty' and in any manner conveying to the public that the petitioner's said products do operate from within the skin and do have glowing effect on the skin; (f) An-interim orders in terms of prayers (a) to (e) above; (g) Such further or other order or orders be made and/or direction or directions be given as this Hon'ble Court may deem fit and proper.
(3.) The case of the appellant is that by telecasting television commercials in respect of "fairness cream", the respondent has disparaged the petitioner's fairness cream. It is the case of the appellant that due to research work done by the appellant the appellant invented in 1972 that Niacinamide reduces the pigment melanin and obtained patent in the year 1972 being Patent No. 133669 dated 17th July, 1972 entitled "Niacin containing skin lightening compositions". Since 1992 the appellant has been marketed internationally a cream known as "Fair and Lovely" which was accepted by the consumers at large.;