Counsel Code – 1569P

IN THE

LEARNED DISTRICT COURT

AT NEW DELHI

CIVIL PETITION NO.

ABC/2020

(filed under h Section 6,9,15,19 of Code of Civil Procedure, 1908.)

SLEEK ENTERPRISES PVT. LTD. (PETITIONER) V. MR. AKSHAY SHARMA, (DEFENDANT)

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................2

STATEMENT OF FACTS........................................................................................................4

STATEMENT OF JURISDICTION..........................................................................................5

ISSUES FOR CONSIDERATION............................................................................................6

SUMMARY OF ARGUMENTS...............................................................................................7

ARGUMENTS ADVANCED...................................................................................................8

PRAYER..................................................................................................................................14

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 INDEX OF AUTHORITIES

Cases

Dabur India Ltd vs Colortek Meghlaya Ltd 2010 (42) PTC 88 (Del.)....................................11
Dabur India Ltd vs Wipro Ltd 129 (2006) DLT 265.................................................................9
Dabur India Ltd. Vs. Colgate Palmolive India Ltd. 2004 (29) PTC 401(Del.)........................10
Dabur India Ltd. Vs. Emami Ltd. 2004 (29) PTC 1 (Del.)......................................................10
Godrej Sara Lee Ltd v Reckitt Benckiser (I) Ltd, 128 (2006) DLT 81.....................................9
Hindustan Unilever Limited vs. Gujarat Co-operative Milk Marketing Federation Ltd & Ors
2017 SCC OnLine Bom 2572..............................................................................................10
Karamchand Appliances Pvt. Ltd. vs Sri Adhikari Bros. & Ors. 2005 (31) PTC 1 (Del).......10
The Royal Baking Powder Company vs Wright Crosssley & Co. (1901) 18 R.P.C. 95.........10
Hindustan Lever Limited vs Cavinkare Limited 2004 CriLJ 349............................................12
Shree Maheshwar Hydel Power v Chitroopa Palit And Anr. AIR 2004 Bom 143..................12

Treatises

Halsbury's Laws of England Vol.28 (4th Ed.,2006) Pg. 137 Para274...................................10

Halsbury's Laws of England Vol.28 (4th Ed.,2006) Pg. 138 Para275..................................11
Halsbury's Laws of England Vol.28 (4th Ed.,2006) Pg. 140 Para277...................................11

Constitutional Provisions

Article 19,Constitution of India 1950......................................................................................11

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 STATEMENT OF FACTS

I. Mr. X is the owner of the company “Sleek Enterprises Pvt. Ltd.” He is engaged in
the business of manufacturing hair straightening irons and hair dressing appliances
like blow dryers, etc. He has his product selling arrangements with a number of e-
commerce entities like Amazon, flipkart, Snapdeal and Tatacliq. His products are
put on display with a detailed description and the price at which it shall be sold in
the virtual environment. He has been selling these products under the registered
trademark “SLEEK”. The registration was obtained in the year 2000 under the
Trade Mark Act, 1999 and has been renewed regularly. The trademark sleek has
also acquired distinctive reputation in the segment of hair dressing appliances. The
same have been used in Salons, by freelance make-up and dressing artists as well
as in households. They also have exports to more than 20 countries where they are
registered in all such countries. Despite there being a number of other competitors
in the market like Phillips, Remington, etc., it has been able to acquire 35% of the
market share in hair dressing appliances.
II. While having continued with the said business, Mr. X found a few troubling
incidents that could hamper their reputation in business. Mr. Akshay Sharma, a
regular customer and purchaser or goods from Amazon and also the owner of a
salon named “Rejuvinate” in Delhi, had reviewed the hair straightening iron sold
by Mr. X in the name of “SLEEK” on Amazon. The review was an assessment
made by Mr. Akshay Sharma where he suggested that the product was purchased
and used by him in his Salon and tested upon his customers. The review was a
comment posted in the Amazon’s Customer Reviews on 1st February, 2020 and
read as follows:
“I am highly disappointed with the performance of this product “SLEEK” hair
straightener. I have used this appliance for straightening the hair of my customers
for both permanent and temporary hair treatments. I have earlier used a
Remington hair straightener for over 10 years and was highly satisfied with its
performance. This product claims to be the best in the market, but is actually low
in quality and performance, both. I would suggest all to not be deceived by the
high profile advertisements and glossy pictures. The product has the following
drawbacks as compared to other variants like ones from Remington or Phillips:

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  It is made of very light material and the entire product gets heated up after
5 minutes of use.
 The power connecting cable is short in length and does not serve the needs
of salon people.
 It creases out hair stands only for the time being and the hair turns frizzy
after a short span of time. (This has also been the review of my
customers!!)
 A few customers have also complained of unpleasant smell from their hair
after getting the hair treatment.
 It causes a lot of damage to hair because of overheating of the heating
plates.
 Even after using all kinds of hair protecting and damage control serums as
well as post heating masques, the hair gets damaged and dry.
Wastage of money! Worthless product!! Will never buy it again!!!”

III. The rating given to the product on a score of 5 was 1. Having identified this
review against their product on the Amazon website and app, Mr. X proceeds to
file a suit against Mr. Akshay Sharma for having denigrated their product by
making harsh derogatory remarks for a reputed company and also for trademark
infringement. The Defendant makes claims and statements with regard to the
SLEEK hair straighteners, which are false and unsubstantiated. The Plaintif states
that as a whole, the review is disparaging and denigrating in nature. Since the
trademark was referred to in the comment and was also compared to others in the
market, this amounts to an act of denigration. The impression given by the use of
forceful, decisive and assertive statements/phrases in the Impugned Review is that
the Defendant is an expert and has undertaken extensive research on the topic
and / or is drawing conclusions on the basis of sound and thorough groundwork.

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 STATEMENT OF JURISDICTION

The present petition has been filed under, Section 6,9,15,19 Code of Civil Procedure, 1908
and the Court’s jurisdiction has been invoked to hear and adjudicate the present matter.

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 ISSUES FOR CONSIDERATION

I. WHETHER THE REVIEW HAS BEEN POSTED WITH AN INTENTION TO

MALIGN PLAINTIFF’S PRODUCT AND FOR THE ADVERTISEMENT OF
DEFENDANT’S SALOON?
II. WHETHER THE REVIEW POSTED BY THE DEFENDANT IS A FAIR
OPINION AND PART OF ARTICLE 19(1)(A)?

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 SUMMARY OF ARGUMENTS

I. THE REVIEW HAS BEEN POSTED WITH AN INTENTION TO MALIGN

PLAINTIFF’S PRODUCT FOR THE ADVERTISEMENT DEFENDANT’S
SALON.
II. THE REVIEW POSTED BY THE DEFENDANT IS NOT A FAIR
OPINION AND NOT A PART OF ARTICLE 19(1)(A).

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 ARGUMENTS ADVANCED

I. THE REVIEW HAS BEEN POSTED WITH AN INTENTION TO MALIGN

PLAINTIFF’S PRODUCT TO ADVERTISE DEFENDANT’S SALOON

Defendant’s review is a targeted attack directed against the Plaintiffs product made with an
attempt to attract more customers towards his shop. He submitted that the Impugned review
provides incorrect information and deceives the viewer into believing that the use of product
therein substantiate the claim of the Defendant that the Plaintiffs product is of inferior quality
and / or is inferior to other hair straighteners.

the impugned review as a whole is disparaging and denigrating in nature. The Impugned
review is maliciously published by the Defendant comprises of words and description, in
respect of the Plaintiffs SLEEK hair straightener, which are false in nature and which have
not only denigrated the Plaintiffs product but also caused and likely to further cause special
damage to the Plaintiff. The Defendant claims that creation and publication of such review is
fair opinion, the Defendants review cannot be equated or treated at par with any other review
provided by an ordinary consumer since the intention of an ordinary consumer is not to
attract customers or to come in lime light and consequently earn revenues from the impact
created by the Impugned review. The said review is simply an advertisement on a great
platform like amazon. The Defendant promotes a competing product Remington hair
straightener in his Impugned review in substitution for the product of the Plaintiff
and defendant urges the viewers to stop using the Plaintiffs product. He submitted that the
Defendant seeks to promote two other competing products by comparing the product and
calling it worse on a platform like amazon. He submitted that the acts of the Defendant fall
under the category of 'commercial activities and not a general review of the product by an
ordinary consumer.

With reference to the pointers made by the Defendant in the review, the Plaintiff submits that:

a) That it is inconceivable that the Defendant who claims that he promotes Remington and
Phillips since 'he used it himself, presumably on a regular basis and has used only one bottle
of the Plaintiffs SLEEK Hair straightener is in a position to make a bald statement that it is
made of very light material and the entire product gets heated up after 5 minutes of use.. He

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submitted that on the contrary, the Plaintiff has been able to acquire 35% of the market share
in hair dressing appliances;

b) That the Defendant’s insinuation that product’s power connecting cable is short in length
and does not serve the needs of salon people is not an honest or fair opinion and cannot be
equated in any manner or form with a hyperbole or an exaggerated statement not to be taken
literally. It’s the problem of architecture of the salon;

c) That since the review of the Plaintiff’s product says that it creases out hair stands only for
the time being and the hair turns frizzy after a short span of time, also a few of defendant’s
customers have also complained of unpleasant smell from their hair after getting the hair
treatment. the Defendant is attempting to imply that the hair straightener is bad for hairs and
are of inferior quality, which is factually incorrect;

The Plaintiff submits that the Defendant ought to have conducted proper research or relied on
lab reports before coming to the conclusion and posting review on a platform like amazon.
He submitted that the least that the Defendant could have done was to have conducted
enquiries with the Plaintiff to ascertain the truth/facts before making the false, reckless and
disparaging statements in the review since the impression given by the use of forceful,
decisive and assertive statements/phrases in the Impugned Video is that the Defendant is an
expert and has undertaken extensive research on the topic and / or is drawing conclusions on
the basis of sound and thorough groundwork, research etc. Defendant’s malice is evinced by
the denigrating comments posted by the Defendant in the Impugned review, such as: Wastage
of money! Worthless product!! Will never buy it again!!!

The Plaintiff submits that the Plaintiff has made out a case proving that the Defendant’s
actions satisfy all ingredients to constitute disparagement, slander of goods, and malicious
falsehood.

The law on the subject of disparagement has obtained certain defined contours. Therefore,
what is to be essentially seen in the light of principles enunciated in these judgments is
whether the defendant in issuing the impugned advertisement has, at least prima facie,
committed a tort of slander of plaintiff's goods. Broadly, the principles being :-

(i) comparative advertisement is permissible as long as it does not attain negative

overtones1
1
Godrej Sara Lee Ltd v Reckitt Benckiser (I) Ltd, 128 (2006) DLT 81, and Dabur India Ltd v Wipro Ltd 129 (2006)
DLT 265

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 (ii) Generic disparagement being tortious, it makes no difference whether it is overt or
covert for it to be held as tortious. In that sense, generic disparagement falls foul
of the law and can be injuncted.2
(iii) In an action for malicious falsehood the plaintiff must necessarily plead and prove
the ingredients of malicious falsehood, which are:
(i) that the impugned statement is untrue;
(ii) the statement is made maliciously, that is, without just cause or excuse;
the plaintiffs have suffered special damage thereby.3

Relying upon the decision of this Court in Hindustan Unilever Limited vs. Gujarat Co-
operative Milk Marketing Federation Ltd & Ors. 4, the Plaintiff further submits that there is a
difference between an action for defamation and an action for disparagement, slander of
goods, malicious falsehood and it has been held that the defences available in an action for
personal defamation would not be available in the case of an action for disparagement.

Halsbury's Laws of England (Fourth Edition) Volume 28 are in this regard relevant and
reproduced hereunder:

 Malicious or Injurious falsehood: At common law an action will lie for written or oral
falsehoods which are published maliciously and are calculated in the ordinary course of
things to produce, and do produce, actual damage. Such an action is not one of libel or of
slander, but an action for damage wilfully and intentionally done without lawful occasion
or excuse. At common law special damage is always necessary, but this rule has been
modified by statute.5
 Comparison with Defamation: Actions for malicious falsehood are in a category of their
own and are quite distinct from actions for defamation. These actions are not concerned
with injury to reputation. In an action for defamation, to establish cause of action, the
plaintiff must prove that the words referred to him and bore a meaning defamatory of him.
To establish his action in an action for slander of title or slander of goods or other
malicious falsehood, the plaintiff must prove that the words were false, that they were
published maliciously and unless covered by the statutory exceptions, that they caused

2
Dabur India Ltd. v. Colgate Palmolive India Ltd. 2004 (29) PTC 401(Del.), Dabur India Ltd. v. Emami Ltd. 2004
(29) PTC 1 (Del.), Karamchand Appliances Pvt. Ltd. v Sri Adhikari Bros. & Ors. 2005 (31) PTC 1 (Del)
3
The Royal Baking Powder Company v Wright Crosssley & Co. (1901) 18 R.P.C. 95
4
Hindustan Unilever Limited v Gujarat Co-operative Milk Marketing Federation Ltd & Ors 2017 SCC OnLine Bom
2572
5
Halsbury's Laws of England Vol.28 (4th Ed.,2006) Pg. 137 Para274

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 special damage."6 Slander of goods - An action for slander of goods will lie where the
defendant falsely and maliciously publishes words of and concerning the plaintiff's goods
and where the publication causes the plaintiff to suffer special damages."7

Dabur vs. Colortek that to calculate special damage the Court must step into the shoes of a
reasonable and prudent man and assess the injury caused by the impugned material. In an IP
suit for infringement of trade mark or passing of, the injury suffered by the plaintiff therein
may be gauged from the profits accrued by the infringer from the sale of the infringing
products. However, the same principles do not apply to a case for disparagement / slander of
goods. In such cases the reputation of the plaintiffs product is impacted whereby its
customers are induced to not purchase the product of the plaintiff. It is impossible to precisely
ascertain how many customers, as a result of the disparaging action / slander of goods, have
refrained from purchasing the product of the Plaintiff.8

II. THE REVIEW POSTED BY THE DEFENDANT IS NOT A FAIR

OPINION AND NOT A PART OF ARTICLE 19(1)(A)

Freedom of Speech and Expression / Article 19 of the Constitution of India.9 Admittedly, the
Defendant is regularly in work of saloon which is his fulltime occupation and only source of
livelihood. Unlike a normal consumer, the Defendant strives to generate to generate revenue.
The Defendant intended to gain consumer from the Impugned review. It was a commercial
purpose of earning revenue which is also the reason why the Defendant has posted such
review. The publication of the Impugned review is thus a commercial activity and the
Defendant’s "opinion" in this view amounts to commercial speech. In the Shree Maheshwar
Hydel case this Court has observed that in a dispute between two private parties, one cannot
claim an unfettered right of freedom of speech and expression against the other. The
Defendant for his monetary gain is attacking the Plaintif / its product in an attempt to attract
more customers to his saloon and thereafter divert readers of review to various other related
and unrelated products by providing names of the products. Even though he is an individual,
the Defendant cannot assert a fundamental right to abuse the Plaintiffs product by making

6
Halsbury's Laws of England Vol.28 (4th Ed.,2006) Pg. 138 Para275
7
Halsbury's Laws of England Vol.28 (4th Ed.,2006) Pg. 140 Para277
8
Dabur India Ltd v Colortek Meghlaya Ltd 2010 (42) PTC 88 (Del.)
9
Article 19,Constitution of India 1950

12
false / malicious allegations against it to gain monetary beneft. 10 The tests with regard to
limitations on defendant is the right to commercial speech under Article 19(1)(a) and 19(2) of
the Constitution of India would therefore apply to the present case.

The fundamental right to freedom of speech and expression is not an unfettered right. While
it is absolutely necessary to maintain and preserve the freedom of speech and expression, it is
equally necessary to have some restrictions on this freedom of speech and expression for the
maintenance of social order in democracy. Since no freedom can be absolutely
unlimited, Article 19(2) of the Constitution of India provides the grounds on which
reasonable restrictions on the freedom of speech and expression can be imposed. It is not in
dispute that commercial speech is a part of the fundamental right guaranteed under Article
19(1)(a) of the Constitution of India, however, it cannot be that the fundamental right so
guaranteed under the Constitution can be abused by any individual by maligning or
disparaging the product of others as is done in the present case. In the case of Hindustan
Unilever vs. Cavincare , the Court held as follows:11

"10.1 ... The litmus test, in my opinion is, whether (Sic) reasonable or prudent man" would
take the statement "seriously"- attributing a defect in the rival traders goods. It is because
ultimately it is for the consumers to decide which product is better equipped to meet his
needs. ... Since advertisements is a form of commercial speech it is protected under Article
19(1)(a) of the Constitution of India, albeit with reasonable restrictions as provided by law.

In the case of Hindustan Unilever vs. Gujarat Co-operative12, it was held as follows:

It cannot be disputed that advertisements and/or commercial speech is a part of the

fundamental right guaranteed under Article 19 (1) (a) of the Constitution of India. However,
it cannot be that the fundamental right so guaranteed under the Constitution can be abused by
any individual and/or manufacturer of a product by maligning, discrediting and/or belittling
the product of another manufacturer by way of negative campaign as is done in the present
case.

The Defendant cannot under the garb of educating / bring the true facts to public, provide
misleading information to disparage the Plaintiffs product. Any campaign to educate the
members of the public by placing before them the true and correct facts may be welcomed.

10
Shree Maheshwar Hydel Power v Chitroopa Palit And Anr. AIR 2004 Bom 143
11
Hindustan Lever Limited v Cavinkare Limited 2004 CriLJ 349
12
supra note 4

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However, under the garb of educating and / or bringing the correct facts before the members
of the public, no one should put misleading information which disparages / discredits or
belittles someone else’s product or defendant influences the consumer not to buy the said
product. Additionally, use of the Plaintiffs registered trademarks by the Defendant in a
manner which is detrimental to its distinctive character or reputation cannot ever be in
accordance with the honest practices in industrial or commercial matters.

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 PRAYER FOR RELIEF

Wherefore in the lights of facts stated, issues raised, arguments advanced, and authorities
cited, it is most humbly and respectfully prayed before the Learned District Court of
Ahmedabad, that it may be pleased to: -

 Pass an order of an interim relief in the form of an injunction to delete the

review

And grant any other order in favour of the Plaintiff, which this Court may deem fit in the
ends of justice and good conscience.

All of which is most humbly and respectfully submitted.

Place: Delhi Counsel No. 1569-P

Date: 24th August, 2020 Counsel for the Plaintiff

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