- (1.) The above motion has been taken out by the plaintiff for interlocutory relief against the defendants and each of them for appointment of the Receiver for taking possession of the production master copy and the art works of the advertisement material lying with various television channels all across India including respondent Nos. 2, 3 and 4 and to keep the same in his safe custody until disposal of the suit; for an order of injunction restraining the respondents and each of them and their servants, agents and assigns from publishing by telecast or otherwise the advertisement referred to in paragraph 10 of the petition or any publicity similar thereto and in any from reflecting adversely on the plaintiff/petitioner's product 'Horlicks' in any manner whatsoever; an order of injunction restraining the respondent No. 1 and its servants, agents and assigns from publishing any advertisement published in Ananda Bazar Patrika in Annexure 'E1' to the petition and from continuing to telecast or causing to be telecast any further advertisement/publicity similar to or substantially similar to the advertisement mentioned in paragraph 13 and Annexure 'E' containing the composition of 'Brand H' or any brand referring to 'H' directly or indirectly.
(2.) The above interlocutory reliefs have been claimed for getting decree for perpetual injunction in a suit filed by the plaintiff in the same terms of the interlocutory reliefs and also a decree for special damage quantified at a sum of Rs.3 crores.
(3.) Upon reading of the plaint and petition it appears that the plaintiff 's action against the first defendant with the help and assistance of the rest of the defendants for illegal puffing of the first defendant's products in the market on the short fact stated hereinafter. Both the plaintiff and the first defendant are engaged in producing and marketing amongst others health drinks and other food products. In the plaint it has been alleged that the plaintiff has been producing and marketing in India as well as in the various parts of the worlds for over a century covering wide range of nutritional and health care products. One of such products is commonly known as Horlicks which has become almost household name to nourish the children in particular and also ailing adults. The plaintiff has acquired tremendous goodwill in the market amongst other all over India particularly in the southern and eastern parts. Yearly turnover of the plaintiff's business is almost 60% of the total turnover of the similar health drinks of other manufacturers. It is claimed that Horlicks is a leading health food drink whose market commands over 50% of the Indian market, 69.2% of the West Bengal market and 53% of the South India market. It is alleged that in the first week of August, 2004 the defendant No. 1 started huge advertisement campaign for its brand Complan principally through TV channels viz. E.TV, ALFA TV and DD-7 by depiction and statements concerning the product of the plaintiff viz. 'H' in order to disparage Horlicks. The advertisement has been telecasted on various channels. Defendant Nos. 2,3 and 4 run along the following lines: (i) The advertisement starts off by showing a school bus and kids rushing to get in to it. The TV advertisement first shows one school boy laughing, then shows two girls laughing and finally shows all the school children laughing at the attempt of one school by hanging from the central bar in the bus apparently in a desperate bid to gain some height. (ii) A smart school boy walks upto the boy hanging from the central bar in the bus who is being laughed at and ridiculed by all other school children. He is advised by the smart boy to ask his mother to give him Complan . which is necessary for growing up (growing tall). (iii) Two cups are then projected - one murky brown cup with 'Brand H' written thereon and the other pure and extra white cup with 'Complan' written thereon. In the background of the TV frame there is a scale shown behind the murky brown cup of Brand H. A white coloured liquid is poured into the Brand H cup while a brown coloured liquid is poured into the white coloured Complan cup. There is a visual depiction of the Complan cup growing in height and becoming almost double the height of the Brand H cup which registers Nil growth. (iv) While this visual depiction of extra growth is being shown for the Complan cup as compared to the Brand H cup, there is a voice over which strongly and emphatically claims that Complan has 100% more milk protein than Brand H.....23 vital nutrients that give extra growing power. (v) The advertisement proceeds to show the same boy, who had been previously hanging on the central bar of the bus, laughing and waving his hand. He is asked by the same smart boy as to whether his mother has started giving him Complan. He replies in the affirmative and compares the increase in his height to his friends that he is as tall as his friend. He proudly declares that he too now was a Complan boy. (vi) The Complan TV advertisement ends on the note 'Gomplan, extra growing power, enjoyable taste'.;