1. The plaintiffs are seeking interim injunction against the defendant from publishing and circulating the impugned advertisement comprising of the 'Pop up', 'Second Link' and 'Third Link'. According to the plaintiffs, the defendant’s advertisement disparages and denigrates the business, services, goodwill, reputation and trademark/tag line of the plaintiffs.
2. The plaintiffs are carrying on the business of sale of used/pre-owned cars in the name of 'Cars24'. The plaintiffs have developed an advertisement campaign in which Mr. Boman Irani, a Bollywood celebrity appears in their advertisement as their brand ambassador. The advertisement uses the phrase ‘Car Becho Best Price Mein’ with ‘Cars24’.
3. The defendant is circulating an advertisement campaign in which they use the catch phrase 'Car Becho Sahi Price Mein' in the same colour combination of orange and blue, font and style and a gentleman is shown with goat’s face and the hand gesture is shown in the same manner as that of Boman Irani.
4. The plaintiffs claim their advertisement with its brand ambassador and the catch phrase 'Car Becho Best Price Mein' was in existence much prior in time since July 2017 whereas the disparaging advertisement of the defendant was started on or about 27th April, 2018. According to the plaintiffs, the disparaging advertisement has been created keeping the plaintiffs’ advertisement in mind, with malafide and dishonest intention to ridicule, slander, disparage and show the plaintiffs and its brand ambassador in bad light by similar tagline/catch phrase in the same colour combination, font and style of the tagline as that of the plaintiffs’; body language and posture of their mascot in the impugned advertisement is identical to that of the brand ambassador in the plaintiffs’ advertisement; the manner of pointing index finger of the right hand towards the viewer of the advertisement is also identical; and the mascot in the defendant’s disparaging advertisement is donning an identical black colour blazer as that of the plaintiffs’ brand ambassador.
5. During the course of hearing dated 03rd July, 2018, the parties agreed to make an endeavour to resolve the matter. The parties met on 06th July, 2018 and 09th July, 2018. On 10th July, 2018, both the parties informed this Court that they have narrowed down their differences and the defendant agreed to modify their advertisement to the proposed advertisement marked as Annexure ‘A’. However, the plaintiffs insisted that the defendant should delete the words 'DON’T BE A BAKRA' which was not acceptable to the defendant. Relevant portion of the order dated 10th July, 2018 is reproduced hereunder:
'1. Learned senior counsels for the parties submit that the parties had a meeting with their counsels yesterday in which the differences have further narrowed down.
2. Learned senior counsel for the defendant submits that without prejudice to the defendant’s rights and contentions, the defendant proposed to modify their advertisement to put an end to this litigation. The copy of the modified advertisement is handed over and taken on record. The copy of the proposed advertisement handed over by the defendant is marked as 'Mark A'.
3. Learned senior counsel for the plaintiff submits that the words 'DONT BE A BAKRA' in the proposed modified advertisement is not acceptable to the plaintiff.
4. Since the parties are not able to agree on the inclusion/exclusion of the words 'DONT BE A BAKRA', learned senior counsels for the parties submit that the matter be heard and adjudicated.'
6. Mark ‘A’ mentioned in the order dated 10th July, 2018 is reproduced hereunder:
7. Mr.Anil Sapra, learned senior counsel for the plaintiffs urged at the time of the hearing that use of words 'DON’T BE A BAKRA' refers to the plaintiffs and disparages the plaintiffs’ advertisement and would give an impression to the public that the plaintiffs are fooling them with false promises. The disparaging advertisement prompts the public not to become a ‘Bakra’, which means not to be fooled with false promises by the plaintiffs and its brand ambassador are making false promises and fooling the customers. Insistence of the defendant to refer to catch phrases and similar tagline as that of the plaintiffs reflects the malafide and dishonest intentions of seeking to continue the disparagement. Reliance is placed on Reckitt Colman of India Ltd. v. M.P. Ramchandran, MANU/WB/0476/1998, Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd., MANU/DE/0744/1996, Pepsi Co., Inc. v. Hindustan Coca-Cola Ltd., MANU/DE/0896/2003 and Dabur India Ltd. v. Colgate Palmolive India Ltd., MANU/DE/0657/2004.
8. Mr. Amit Sibal, learned senior counsel for the defendant urged at the time of the hearing that the defendant has the registered trademark of a cartoon goat of 5.5 feet carrying a placard on which its written, 'DON’T BE A BAKRA' ‘OBV’ and the defendant is using its registered mark since 2016 in various print and digital advertisements. The registered trademark of defendant is reproduced hereunder:
9. The plaintiffs contention that the defendant’s advertisement only ran from July 2017 onwards, is disputed by the defendant. The use of the word ‘Bakra’ with the placard creates an association with the defendant’s services and in no manner disparages the plaintiff’s services. The impugned advertisement did not make a reference to the plaintiffs’ services, even the proposed modified advertisement does not denigrate the plaintiffs’ services. The placard, which is a part of the defendant’s registered trademark, is intended to give a positive message to the public at large and to encourage potential users of its services to make an informed choice in the unorganized market. There is no comparison with the plaintiffs’ services or any reference to it and there can be no disparagement. The defendant by its proposed advertisement only seeks to use its registered mark with the tagline 'Car Becho Sahi Price Mein' comprising of words which are generic and common to the trade of used or second hand car business/market and have changed the font style and colour scheme and do not refer to the services of the plaintiffs in any manner. In any case, no statement has been made which is untrue or misleading. The parties cannot be hypersensitive and advertisers should be granted creative latitude to ensure promotion of a robust market for trade. Due credit is to be given to the public to discern and differentiate between products/services as today’s consumers are vigilant and aware of their rights. Reliance is placed on Reckitt Benckiser v. Cavin Kare Pvt. Ltd., 2007 (35) PTC 317 (Del.), HUL v. Cavincare Private Limited, 2010 (44) PTC 270 (Del.), Dabur v. Colortek Meghalaya Pvt. Ltd., 2010 (44) PTC 254 (Del.) (DB), Marico v. Adani Wilmar , 2013 (54) PTC 515 (Del.) and Dabur India Ltd. v. Wipro Limited, 2006 (32) PTC 677 (Del.).
10. On careful consideration of the rival contentions of the parties, this Court is of the view that the defendant has fairly given up colour combination, font and style of the tagline, body language and posture of their mascot in the impugned advertisement and the proposed advertisement Mark-A submitted b
Please Login To View The Full Judgment!
y the parties before this Court on 10th July, 2018 does not disparage or denigrate the business services, goodwill, reputation and trademark/trade line of the plaintiffs. The defendant’s use of the words 'DON’T BE A BAKRA' does not refer to the plaintiffs and does not denigrate the plaintiffs’ services. Rather the words 'DON’T BE A BAKRA' is a part of the defendant’s trademark. The defendant has not made any reference to the plaintiffs in the proposed advertisement, Mark-A. 11. The defendant is permitted to continue with the proposed advertisement Mark-A, reproduced in paragraph 5 above during the pendency of the suit. Defendant is also permitted to use the words 'DON’T BE A BAKRA' in their advertisement during the pendency of the suit. Application is disposed of in the above terms.