- (1.) THE plaintiff founds this action in passing off on the first defendant, allegedly copying the plaintiffs slogan in the second-last frame of the plaintiffs television commercial relating to its Horlicks health food drink powder. The plaintiff says that the slogan being the most prominent feature of its commercial, which is also the theme used in danglers and other promotional material used by the plaintiff, it has come to be so exclusively associated with the plaintiffs product that any form of imitation thereof by any other person would amount to deceit for filching the trade and trading upon the goodwill of the plaintiff and its renowned product.
(2.) THERE appears to be little doubt that the plaintiff's is a well-known product. The first defendant has not contested either the plaintiff's or its said product's reputation. The plaintiff shows-and there is no reason to disbelieve the plaintiff-that it has expended several tens of crores in its advertisement campaign in which the punch-line in the television commercial is the most recognisable feature. The plaintiff's impressive turnover and the substantial sales figures of its Horlicks product also remain unquestioned at this stage.
(3.) THE plaintiff does not complain of the television commercial that the first defendant has hit upon in connection with its competing product by the name of Pediasure. The plaintiff's grievance is limited to the last frame of the first defendant's commercial and, in particular, to the three superlatives used therein. These, the plaintiff alleges, are so closely resembling the three comparative adjectives in the second-last frame of the plaintiff's commercial that it would lead to confusion in the sense that a viewer would associate the first defendant's product with the plaintiff or form an impression that Pediasure came from the same stable as Horlicks.;