TEAM CODE: H

IN THE
HONBLE SUPREME COURT OF INDIA

THE CASE CONCERNING THE GRANT OF INTERIM INJUNCTION AGAINST THE ORDER OF HIGH
COURT

ABC LTD. & MEGHNA

(Petitioner)
V.
XYZ LTD.
(Respondent)

MEMORIAL FOR THE PETITIONER

CMR 4TH NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS

TABLE OF CONTENTS:

TABLE OF CONTENTS.............................................................................................................. i
ABBREVIATIONS...................................................................................................................... iii
INDEX OF AUTHORITIES........................................................................................................ v
STATEMENT OF JURISDICTION......................................................................................... ix
QUESTIONS PRESENTED....................................................................................................... x
STATEMENT OF FACTS......................................................................................................... xi
SUMMARY OF ARGUMENTS...............................................................................................xiii
PLEADINGS
CONTENTION 1: THAT GRAVE AND SUBSTANTIAL INJUSTICE HAS BEEN DONE
BY IGNORING THE ESTABLISHED PRINCIPLES OF LAW
1.1 THAT THERE EXISTS A DISCREPANCY, GIVING RISE TO A SUBSTANTIAL AND
DETAILED INTERPRETATION OF LAW................................................................1
1.2 THAT THE ESTABLISHED PRINCIPLES OF LAW WERE BREACHED......................4
1.3 THAT GROSS MISCARRIAGE OF JUSTICE HAS BEEN CAUSED...............................4
CONTENTION 2: THAT THE PRINCIPLES OF INTERIM INJUNCTION ARE
SATISFIED IN THE INSTANT CASE
2.1 THAT A PRIMA FACIE CASE FOR INJUNCTION EXISTED.........................................7
2.1.1 That XYZ Ltd. disparaged ABC Ltd. ............................................................7
2.1.2That Malicious Falsehood was involved......................................................10
2.1.3That XYZ Ltds ad amounted to Unfair Trade Practice and infringement of
Trademark ...............................................................................................11
2.2 THAT ABC LTD HAS SUFFERED AN IRREPARABLE INJURY................................13
2.3 THAT THE PRINCIPLE OF BALANCE OF CONVENIENCE LIES IN ABC LTDS FAVOR.15
CONTENTION 3: THAT IT HARMS THE GOODWILL AND REPUTATION OF
MEGHNA

MEMORIAL FOR PETITIONER

ii

TABLE OF CONTENTS

3.1 THAT MEGHNA HAS CELEBRITY RIGHTS UNDER ARTICLE 21 OF THE

CONSTITUTION THAT HAVE BEEN VIOLATED BY XYZ LTD.........................................18
3.1.1 Who is a Celebrity? .............................................................................18
3.1.2 Celebrity Rights...................................................................................19
3.2 THAT THE PROVISIONS OF INDECENT REPRESENTATION OF WOMEN'S ACT,
1986HAVE BEEN VIOLATED BY XYZ LTD. ...............................................................22
3.3 THAT CHAPTER II OF ASCI HAS BEEN VIOLATED BY XYZ LTD. ...........................23
3.4 THAT THE PROVISIONS OF THE CABLE TELEVISION NETWORKS (REGULATION)
ACT, 1995: ............................................................................................................24

PRAYER..xiii

MEMORIAL FOR PETITIONER

iii

LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS:

AIR: All India Report

Art: Article

p.: page

ACC: Accident and Compensation Case

ACJ: Accidents Claims Journal

ALT: Andhra Law Times

Ch: Chapter

Ed.: Edition

Guj: Gujarat

MP: Madhya Pradesh

Mys: Mysore

Ors: Others

AC: Appeal Cases

V.: Verses

&: And

CO.: Company

Ltd.: Limited

PTC: Patent and trade mark cases

Viz: videlicet

SC: Supreme Court

SCC: Supreme Court Cases

SCR: Supreme Court Reports

Del: Delhi

DLT: Delhi Law Times

GRP :Gross Rating Point

MEMORIAL FOR PETITIONER

iv

LIST OF ABBREVIATIONS

Bom: Bombay

Pvt. : Private

Anr: Another

FSR: Fleet Street Reports

Rev. LR: Review Law Reports

PLR: Patna Law Reports

Ori: Orissa

Ad : Advertisement

ITR: Income Tax Reports

M/S: Messers

Ph : Paragraph

OLR: Office of Legislative Research

MNC: Multi National Company

Cert.: Certificate

EWCA Civ: Court of Appeal Civil Division

UP: Uttar Pradesh

Honble: Honorable

ASCI: Advertising Standards Council of India

Ed. : Edition

MEMORIAL FOR PETITIONER

INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

TABLE OF STATUTES

The Constitution of India

The Specific Relief Act, 1963

The Code of Civil Procedure, 1908.

The Cable TV Networks Rules, 1994

The Code of Self Regulation (ASCI)

The Consumer Protection Act, 1986

The Trademarks Act, 1999

The Indian Copyright Act, 1957

The Indecent Representation of Women (Prohibition) Act, 1986

The Information Technology Act, 2000

TABLE OF BOOKS AND JOURNALS

Mahendra P Singh, Constitution of India, 11th edition, 2008

G. S. Gupta, Law of Injunctions (Revised by P. M. Bakshi), Orient Publishing

Company, 6th Ed. 2004

Blacks Law Lexicon, 9th Ed., 2009

Avinash Shivade, Intellectual Property Manual, LexisNexis Butterworths,10th Ed.

2004

PK Majumdar & RP Kataria, Commentary on the Constitution of India, 10th Ed., 2009

Durga Das Basu, Shorter Constitution of India, 14th Ed., 2009

MP Jain, Indian Constitutional Law, 6th Ed., 2010

HM Seervai,

Constitutional

Law

Of

India,

Volume II,

MEMORIAL FOR PETITIONER

4th

Ed., 1999

vi

INDEX OF AUTHORITIES

ARTICLES AND REPORTS

Haque Azmul, India: Face value personality rights and celebrity endorsement, 2003

Li. Z. P. Shroff, R. Venkataraman. Goodwill impairment loss: Causes and

consequences, University of Minnesota Working Paper, 2006

TABLE OF CASES
A~B

A K Porbunderwala v. Gulam Hussein, AIR 1974 BOM 288

Anand Prasad Agarwalla v. State of Assam v. Tarkeshwar Prasad & Ors., AIR 2001
SC 2367

Antaryami Dalabehera v. Bishnu Charan Dalabehera, 2002 I OLR 531

Anwar Elahi v. Vinod Misra and Anr., 1995 IVAD DELHI 576

Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694

Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd., 2005 (1) CHN 582
D~G

Dr. Ramesh Prabhu v. Prabhakar Kashinath Kunte & Ors., AIR 1996 SC 1113

Durga Shankar Mehta v. Raghuraj Singh, AIR, 1954 SC 520, 523

Dalpat Kumar and Another v. Prahlad Singh and Others AIR 1993 SC 276

Dabur India Ltd. V. Wipro Limited, 129 (2006) DLT 265

Dabur India Ltd v. M/s Colortek Meghalaya Pvt. Ltd, 2005 CRI LJ 1901

DSG Retail Ltd v. Comet Group PLC (2002) FSR 899

Douglas and Zeta Zones v. Hello Ltd, [2005] EWCA CIV 595

Gujarat Bottling Co. v. Coca Cola Co and Cthers, 1995 (5) SCC 545

Gujarat Electricity Board v. Mahesh Kumar Reo, AIR 1982 GUJ 289

MEMORIAL FOR PETITIONER

vii

INDEX OF AUTHORITIES

Gaddipati Sambrajyam v. Panguluri Mahalakshmamma, 1995 (1) ALT 305

I~K

ICC Development (International) Ltd v. Arvee Enterprises, (CS) OS 1710/2002)

Irc v. Muller & Co.'s Margarine Ltd, 9101 A.C. 217 (H. l.)

Irvine v. Talksport, [2003]EWCA CIV. 423

Khemraj v. M/s Garg and Co., AIR 1975 DELHI 130

Kharak Singh v. State of UP & Ors., [1964] 1 S.C.R. ; 332--AIR. 1963 S.C. 1295

Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public

Prosecutions, (1972) 2 ALL ER 898
M~P

Mahadeo Savlaram Shelke and Ors. V. Puna Municipal Corporation JT 1995 (2) SC
504

Marin Burn Ltd. v. R.N. Banerjee, 1958-i L.L.J. 247

Mukesh v. Deonarayan, AIR 1987 MP 85

M/s. S. C. Cambatta & Co. Private ... v. The Commissioner of Excess, 1961 SCR (2)
805

Midler v. Ford Motor Co. & Others, 1988, U.S. Court of Appeals, 9th Circuit,
849.F.2D 460

Orissa State Commercial Transport Corp. Ltd. v. Satyanarayan Singh, (1974) 40

CUT LT 336

Phoolan Devi v. Shekar Kapoor & Others, 57 (1995) DLT154

P.S.R Sandanantham v. Arunachalam, (1980) 3 SCC 141:AIR 1980 SC 856

Pepsi Co Inc and Ors v. Hindustan Coca Cola Ltd and Ors., 2003(27) PTC 305

Pishora Singh v. Smt Lajo Bai, 1974 REV. LR 644;77 PLR 30

R~S

R. Kannaiah v. Bangalore Woollen Cotton and Silk Mills, AIR 1969 MYS 341

MEMORIAL FOR PETITIONER

viii

INDEX OF AUTHORITIES

Reckitt & Colman v. Kiwi T.T.K. Ltd., 63 (1996) DLT 29

Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264

Sanvat Singh v. State of Rajasthan, AIR 1961 SC 715

S.M. Dyechem Ltd. v. M/s. Cadbury (India) Ltd, AIR 2000 SC 2114,

Suzuki Motor Corporation v. Union of India, 1997 (2) ARBLR 477 Delhi

T~W

Titan Industries Limited v. Ramkumar Jewelers, CS(OS) 2662 of 2011

Trego v. Hunt, (1896), APP. CASE, 7

Upendra Das v. Krishna Sahu, (1971) 1 CWR, 548; AIR 1972 ORI 12

V. Sabitha v. APSRTC, 1999 (6) SCC

White v. Samsung Elec Am. Inc., 971 F2D. 1395, 1397(9th CIR 1992)

MEMORIAL FOR PETITIONER

ix

STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The petitioners have approached the Honble Supreme Court of India under Article 136 of
the Constitution of India.

MEMORIAL FOR PETITIONER

QUESTIONS PRESENTED

QUESTIONS PRESENTED

1. WHETHER GRAVE AND SUBSTANTIAL INJUSTICE HAS BEEN DONE BY

IGNORING THE PRINCIPLES OF LAW?

2. WHETHER THE PRINCIPLES OF INTERIM INJUNCTION HAVE BEEN

SATISFIED IN THE PETINENT CASE?

3. WHETHER

THE

ADVERTISEMENT

HARMS

REPUTATION OF MEGHNA?

MEMORIAL FOR PETITIONER

THE

GOODWILL

AND

xi

STATEMENT OF FACTS

STATEMENT OF FACTS

ABC Ltd., a well known company, having its incorporated office in New Delhi has been
involved in the business of providing travel solutions for three decades. The company has a lot of
brand equity and owns 40% of the market share. Recently, XYZ Ltd., a company incorporated in
Mumbai, also started providing travel and tourism services. In the month of October 2013, XYZ
Ltd. started an aggressive advertising campaign, with the bold headline: Lowest Fares Assured
No other company can give you a better deal. Upon the launch of the campaign, ABC Ltd.
filed a complaint before the Advertising Standards Council of India. Both companies were
members of ASCI. The Fast Track Complaints Council held that the advertisement of XYZ was
indeed in violation of Chapter I.1 and I.4 and I.5 of the Code for Self Regulation in Advertising
and as a result, XYZ Ltd. withdrew the advertisement campaign. Later on, ABC Ltd.
renegotiated its contracts to arrive at even better deals and launched an advertising campaign,
where it employed the services of Meghna, a singer who gained popularity amongst the youth.
Three weeks after ASCIs decision, XYZ Ltd. started another advertising campaign, with the
disparaging claim: We can give you better and economic deals than ABC. Your choice; believe
a female singer, or just compare our prices online. The advertising campaign was started on
Friday evening, and such advertisements were released on various platforms. Considerable
investment was made by XYZ Ltd. in the campaign, to ensure maximum visibility of the
advertisement during the weekend. On the following Monday, ABC Ltd. filed a suit before the
Delhi High Court, alleging disparagement and malicious falsehood by XYZ Ltd. It also filed for
an interim application. It further submitted that comparison of prices is not enough to make the
bold claim of better and economic deals as ABC Ltd. is known to provide better services, more
ground coverage, and more options and flexibility. The advertisement clearly infringed the
trademark of ABC Ltd. Impleading herself in the suit, Meghna also sought an immediate
injunction of the advertisement, alleging that the advertisement campaign unfairly draws benefit
from and harms her goodwill and reputation. The tone of the advertisement also derides women.
The High Court, did not grant the interim injunction. ABC Ltd. and Meghna filed an appeal

MEMORIAL FOR PETITIONER

xii

STATEMENT OF FACTS

before the Division Bench. It was submitted by ABC Ltd. that the Court disregarded the basic
principle in granting interim reliefs, as it did not appreciate the balance of convenience. It was
also prayed that in the interim stage, and till such time that the truth of the advertisement cannot
be proven, a Court would err in taking a view about the truthfulness in an advertising claim, and
therefore, the Court ought to have granted ABC Ltd. the sought relief. However, the Division
Bench held that the order of the Single Judge did not warrant interference by the Appellate
Court. Both ABC and Meghna preferred to file a Special Leave Petition before the Supreme
Court against the order of the Division Bench.

MEMORIAL FOR PETITIONER

xiii

SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS:

I.

THAT THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF THE

DIVISION BENCH IS AMENABLE.
The ambit of the discretionary power of the Honble Supreme Court under Article 136 of
the Indian Constitution cannot be defined exhaustively. Decided cases however, establish
that the Court will grant a special leave to appeal in cases where gross miscarriage of
justice has taken place. In the present case, the petitioners have been undergoing a loss of
goodwill and reputation every single day that the advertisement is being aired on various
forms of media.

II.

THAT THE PRINCIPLES OF INTERIM INJUNCTION ARE SATISFIED IN

THE INSTANT CASE
According to judicial precedents, the principles which need to be established to grant an
interim injunction include prima facie case, irreparable loss and balance of convenience.
According to Order XXXIX, Rule 1 of the Civil Procedure Code 1908, any property
which is in danger of being wasted, damaged or alienated by any party to the suit, an
injunction should be granted against such an act.
In the present case, the three principles of interim injunction have been satisfied but have
not been considered by the Honble Delhi High Court. The Petitioners have been
undergoing extreme losses every day that the advertisement is getting aired on various
forms of media.

III.

THAT THE IMPUGNED ADVERTISEMENT HARMS THE GOODWILL AND

REPUTATION OF MEGHNA.
Article 21 of the Indian Constitution confers three rights on the citizens of the country:
privacy rights, publicity rights and publicity rights. In the instant case, the goodwill and
reputation of Meghna, is getting harmed every day. As a celebrity, she is entitled to the
rights conferred by the above article. The advertisement also denigrates her reputation
and is illegal under section 3 and 4 of the Indecent Representation of Women
(prohibition) Act, 1986

MEMORIAL FOR PETITIONER

PLEADINGS

PLEADINGS

CONTENTION 1: THAT THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF THE DIVISION
BENCH IS AMENABLE.
It is humbly submitted to the Honble Supreme Court of India that the present special leave to
appeal against the order of the Division Bench has resulted in gross miscarriage of justice. The
aforementioned miscarriage of justice flows from the denial of interim relief which was sought
by the petitioners from the Honble Delhi High Court. The interim relief was to be granted on a
well settled principle of balance of convenience, which was refused by the learned single judge
bench and subsequently by the Division bench. Moreover, the Delhi High Court in its previous
decision has erred in non-recognition of a prima-facie malicious falsehood and also in examining
the misleading nature of the impugned advertisement.
1.1 THAT

THERE EXISTS A DISCREPANCY, GIVING RISE TO A SUBSTANTIAL AND DETAILED

INTERPRETATION OF LAW

Article 136 of the Indian Constitution1 confers a wide discretion on the Supreme Court not
otherwise provided for in the Constitution.2 It is in nature of a residuary or reserve power3 and,
therefore, it cannot be defined exhaustively. Owing to its wide scope it is subject to spare use by
the Honble Supreme Court. However, decided cases establish that the Supreme Court will grant
special leave to appeal in cases where grave and substantial injustice has been done by
disregarding the forms of legal process or violation of the principles of natural justice or

Article 136 of the constitution- Special leave to appeal by the Supreme Court:
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces
2
MAHENDRA P SINGH, CONSTITUTION OF INDIA, 11th edition, p. 502, ph- 9
3
Durga Shankar Mehta V. Raghuraj Singh, (AIR, 1954 SC 520, 523)

MEMORIAL FOR PETITIONER

PLEADINGS

otherwise. Considering the case of Sanvat Singh V. State of Rajasthan4, wherein the Honble
Supreme Court held that,
Although the powers of this Court under Art. 1365 of the Constitution are very wide,
interference is not permitted unless by disregard to the forms of legal process or some violation
of the principles of natural justice or otherwise, substantial and grave injustice has been done,
on questions of fact the practice of this Court is not to interfere except in exceptional cases when
the finding is such that it shocks the conscience of this Court.
While considering a petition under Art. 136, it is reasonable to assume that the norms of fair
procedure implied under Art. 216 are adequately met and the procedure followed in disposing off
a petition under Art. 136, is consistent with the procedure contemplated by Art. 21.7
Thus, the two-fold primary burdens to be dispensed for the amenability are:
1. That the Delhi High Court has erred in the examination of the truthfulness of the
advertisement resulting in the subsequent miscarriage of justice and,
2. That the aforementioned injustice requires detailed interpretation in the matter of grant of
interlocutory reliefs.
With regard to the former question it is imperative to fully understand the nature and context of
advertisement before making any arguments in this regard. Advertisements help people make
well-informed and intelligent economic choices. More important than the right of expression of
the advertiser is the right of the recipient of the advertisement.
The Apex Court observed in Tata Press V. Mahanagar Telephone Nigam Ltd.8
Article 19 (1)(a)9 not only guarantees right of freedom of speech and expression but it also
protects the right of an individual to listen, read and receive commercial speech. So far the

(AIR 1961 SC 715)

Supra note 1
6
Article 21 of the Constitution of India- Protection of life and personal liberty:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
7
P.S.R Sandanantham V. Arunachalam, (1980 3 SCC 141), (AIR 1980 SC 856)
8
(1995 AIR 2438)
9
Article 19 of the Constitution of India-All citizens shall have the right :
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
5

MEMORIAL FOR PETITIONER

PLEADINGS

economic needs of a citizen are concerned their fulfillment has to be guided by the information
disseminated through advertisement. The recipient of commercial speech may be having
greater interest in the advertisement given. Such deeper interest can be dealt with dishonesty by
the advertiser as the consumers totally rely on the information provided by the advertiser
through his advertisement of the given product.
The point in question being the primary aim of a travel and tourism company is not solely based
on a mere comparison of prices but also on a lot many factors, such as the area covered in a
given time. These factors are not mere incidental aspects, rather are equally important. It is a
known fact that ABC Ltd. covers maximum ground area than any other company10. Thus,
making XYZ Companys claim misleading, unsubstantiated and dishonest. Viewed in the
aforementioned perspective the statement better and economic deals compare our prices
online is misleading since it seems to suggest that comparison of prices is the only criteria that
makes a travel deal better and economic.
Further, it is stated that the mere fact that in some other similar cases, leave was not granted or
that the SLP was dismissed, does not constitute res-judicata11 and it would be open to the Court
to examine the question on merits. Bringing out the extent and dimension of the jurisdiction
conferred under Article 136, the Apex Court in Dhakeshwari Cotton Mills v. CIT12, observed:
It is not possible to define with any precision the limitation on the exercise of the discretionary
jurisdiction vested in this court...It is however, plain that when the Court reaches the conclusion
that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of
India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality
of finding of facts or otherwise can stand in the way of the exercise of this power because the
whole intent and purpose of this Article is that it is the duty of the Court to see that injustice is
not perpetuated or perpetrated by decisions of the Courts and tribunals because certain laws
have made the decision of these Courts or tribunals final and conclusive.
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
10
P. 2, ph-2, line 6 of the proposition
11
A rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit
as to all matters that were litigated or that could have been litigated in that suit.
12
(AIR 1955 SC 65); Manju Verma V. State of Uttar Pradesh, (2000 (1) SC 73)

MEMORIAL FOR PETITIONER

PLEADINGS

The aforementioned case states the need and scope of amenability under Art. 136. In
corroboration with the facts of the present case we can see that an immediate relief is requisite
for safeguarding the rights of the petitioners which are being grossly abridged due to the
impugned advertisement.
1.2 THAT THE ESTABLISHED PRINCIPLES OF LAW WERE BREACHED
It is humbly submitted before the Honble Supreme Court of India that in the present case
various legal principles have been wrongly interpreted by the Honble Delhi High Court.
Thereby, resulting in absolute disregard for the following principles of interim injunction13:
1. Prima facie case for obtaining an interim injunction: In the present case, it can be adequately
seen from the facts of the case that disparagement of the company has happened and has been
done so with malice from the side of XYZ. The alleged malice is seen from the disproportionate
expenditure and the time of release of the advertising campaign.14
2. Irreparable loss/ injury: It is reverently submitted that in the present case, XYZ Ltd cannot
monetarily compensate ABC ltd for the losses incurred. This is due to the refusal of the interim
relief sought.
3. Balance of convenience: It can be seen from the present case that by not granting an interim
injunction, the gradual loss of clientele and goodwill tilts the balance of convenience in favor of
ABC Ltd.
The balance of convenience, prima facie case and irreparable injury to be caused are the deciding
factors to pronouncements in precedents and any expression in any precedent which is
inconsistent with these settled principles may not be correct.
1.3 THAT GROSS MISCARRIAGE OF JUSTICE HAS BEEN CAUSED
In the pertinent case, the goodwill and reputation of the firm cannot be monetarily compensated
for since ABC Ltd. has been in business for 3 decades15, is the largest company in the country
involved in travel and tourism solutions16, owns 40% market share17 and is the India travel
13

Gujarat Bottling Co. V. Coca Cola Co and others, (1995 (5) SCC 545) ; V. Sabitha V. APSRTC, (1999 (6) SCC)
P. 2, ph- 2, line 2 of the proposition
15
P. 1, ph- 1, line 2 of the proposition
16
ibid
14

MEMORIAL FOR PETITIONER

PLEADINGS

partner for various MNCs18. The damages paid by XYZ Ltd. cannot expiate for the reputation
that the company has built over such a long span of time.
Moreover, in the case at hand, the statement made by XYZ Ltd. clearly suggests to take a jibe at
Meghna, when it states that either believe the female singer or just compare the prices online19.
The advertisement clearly targets her reputation in the market being well aware of the fact that
she is a sensation amongst the youngsters20. In addition to the above, the tone of the impugned
advertisement derides women and it denigrates her reputation as well as harms her goodwill.
Furthermore, the Honble High Court of Delhi did not take into consideration the balance of
convenience, which clearly favors the petitioners21. It is, therby, humbly submitted that by
ignoring the established principles of law, gross miscarriage of justice has been done.

17

ibid
P. 1, ph- 1, line 10 of the proposition
19
P. 2, ph- 1, line 1 of the proposition
20
P. 1, ph- 6, line 5 of the proposition
21
P. 3, ph.- 1, line 1 of the proposition
18

MEMORIAL FOR PETITIONER

PLEADINGS

CONTENTION 2: THAT THE PRINCIPLES OF INTERIM INJUNCTION ARE

SATISFIED IN THE INSTANT CASE
An injunction is a prohibitive, equitable remedy issued or granted by a court at the suit of a
party (complainant), directed to a party (defendant) in the action, or to a party made a defendant
for that purpose, forbidding the latter from doing some act which he is in the continuance
thereof, such act being unjust and injurious to the plaintiff, and not such as can be adequately
redressed by an action at law.22
It is humbly submitted to the Honble Apex Court that the Single judges denial of the interim
injunction rests on a misinterpretation of facts and law, thereby resulting in an undeniable
miscarriage of justice. The courts in India have evolved various principles to determine whether
or not an interim injunction is to be granted and it is respectfully contended that the prior relief
for interim injunction satisfied all such principles and tests.
Part III, Chapter VII of the Specific Relief Act, 196323 specifies that preventive relief is granted
at the discretion of the court by injunction, either temporary or perpetual. According to Section
37 of the Specific Relief Act, 196324, temporary injunctions are such as to continue until a
specified time, or until the further order of the court, and they may be granted at any stage of a
suit, and are regulated by Order XXXIX of the Code of Civil Procedure, 1908.
It is humbly submitted that temporary injunction is the name for a preliminary restraining
order stopping a person from carrying out an action until the court has made a decision. 25 Such
reliefs can be granted in aid of the main relief.26 The main object of a temporary injunction is to
keep the matters in status quo until a case is finally decided on merits.27 The real point upon an

22

BLACK'S LAW DICTIONARY, 9th

Ed.
Section 36, Chapter VII, Part III of the Specific Relief Act, 1963- Preventive relief how granted:
Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual
24
Section 37 of the Specific Relief Act, 1963-Temporary and perpetual injunctions:
(1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court,
and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908 ).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the
defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which
would be contrary to the rights of the plaintiff
25
Supra note 21
26
P. M. BAKSHI, LAW OF INJUNCTIONS, Ph- 1, P. 16, Ch.1-SYN.23
27
P.M.BAKSHI, LAW OF INJUNCTIONS, Ph- 2,P. 6, Ch.3-SYN.1
23

MEMORIAL FOR PETITIONER

PLEADINGS

application for temporary injunction is not how the injunction ought to be decided at the hearing
of the case, but whether there is a substantial question to be investigated.28
According to Rule 1 (a) of Order XXXIX of the Code of Civil Procedure, 190829, where in any
suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of
being wasted, damaged or alienated by any party to the suit, a temporary injunction must be
granted. In the pertinent case, the goodwill, reputation, market share, brand equity, turnover and
customer base of the company are directly getting damaged by the respondents claim.
The grant or refusal of a temporary injunction is covered by three principles which have been
codified by authoritative pronouncements in precedents viz,30
(1) If the petitioner has made out a prima facie case
(2) If the balance of convenience is in his favor
(3) If the plaintiff suffers irreparable injury.
It is most respectfully submitted that the purpose behind granting temporary injunction is to
protect the legal rights and to avoid further injury in course of litigation and thus, maintain the
matters in status quo until dispute is finally settled.31 Therefore, it becomes inevitable to grant
the same or else ABC Ltd is susceptible to further losses as everyday that the advertisement gets
aired, the goodwill and reputation of ABC is being maligned. Further all the basic principles
based on which an interim injunction is granted have been satisfied by the petitioner, and hence,
there is no justifiable reason to deny them the same.
2.1 THAT A PRIMA FACIE CASE FOR INJUNCTION EXISTED

28

Ph- 2, P. 113, Ch.2-SYN.25

Rule 1 of Order XXXIX of the Code of Civil Procedure, 1908-Cases in which temporary injunction may be
granted:
Where in any Suit it is proved by affidavit or otherwise
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit,
or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his
creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit, the court may by Order grant a temporary injunction to restrain such act, or make
such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or
disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to
any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.
30
S.M. Dyechem Ltd. V. M/s. Cadbury (India) Ltd, (AIR 2000 SC 2114)
31
R. Kannaiah V. Bangalore Woollen Cotton and Silk Mills, (AIR 1969 Mys 341)
29

MEMORIAL FOR PETITIONER

PLEADINGS

A prima facie case is the one which can be judged from the first disclosure, presumably.32 The
very expression prima facie case is to look into the matter on the face of it, not to dwell into itprejudicing the case on its merits. It does not mean a case proved to the hilt. 33Prima facie case is
not to be confused with prima facie title which has to be established, on evidence at the trial. 34It
was held in the case of Gujarat Electricity Board V. Mahesh Kumar Reo35 that the court should
only be satisfied that there is a probability of petitioner obtaining relief at conclusion of the trial.
Probability of Right is sufficient to sustain an injunction.36 All that the petitioner is required to
show is that he has a fair and serious question to be tried.37
On a plain reading of the above mentioned judgments it is evident that the petitioner need not
delve into the merits as the main suit is still pending in the High Court of Delhi. The fact that the
petitioner has a prima facie case is evident from the direct mention of the companys name in the
advertisement campaign38 which disparages the companys reputation and goodwill, infringes its
trademark and accounts for malicious falsehood on XYZ Ltds behalf.
2.1.1

THAT XYZ LTD. DISPARAGED THE SERVICES OF ABC LTD.

The term disparage literally means to connect unequally or to match unsuitably.

Disparagement is an injury by union or comparison with some person or thing of inferior rank or
excellence39.
Rule 7 of the Cable TV Networks Rules, 199440 contains the Advertising Code. According to this
rule, no ad should violate the Code of Self Regulation under the ASCI. Chapter 4 (1) of the Code

32

Supra note 22
Marin Burn Ltd. v. R.N. Banerjee, (1958 I L.L.J. 247)
34
Suzuki Motor Corporation v. Union Of India, (1997 (2) ARBLR 477 Delhi), ; Dalpat Kumar And Another vs
Prahlad Singh And Others (AIR 1993 SC 276)
35
(AIR 1982 Guj 289)
36
Gaddipati Sambrajyam v. Panguluri Mahalakshmamma, (1995 (1) ALT 305)
37
Mukesh v. Deonarayan, (AIR 1987 MP 85)
38
Supra note 19
39
Supra note 22
40
Rule 7 of the Cable TV Networks Rules, 1994- Advertising Code:
(1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should
not offend morality, decency and religious susceptibilities of the subscribers.
(2) No advertisement shall be permitted which
(i)derides any race, caste, colour, creed and nationality;
(ii)is against any provision of the Constitution of India:
(iii)tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in
any way;
(iv)presents criminality as desirable;
33

MEMORIAL FOR PETITIONER

PLEADINGS

of Self Regulation says that ads containing comparisons with other manufacturers including those
where a competitor is named are only permissible if:
(a) It is clear what aspects of the advertisers product are being compared with what aspects of
the competitors product.
(b) The subject matter of comparison is not chosen in such a way as to confer an artificial
advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the
case.
(c) The comparisons are factual, accurate and capable of substantiation.
(d) There is no likelihood of the consumer being misled as a result of the comparison, whether
about the product advertised or that with which it is compared.
(e) The advertisement does not unfairly denigrate attack or discredit other products, advertisers
or advertisements directly or by implication.

(v) exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a
State dignitary;
(vi)in its depiction of women violates the Constitutional guarantees to all citizens. In particular, no advertisement
shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that
emphasises passive, submissive qualitites and encourages them to play a subordinate, secondary role in the
family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes
carried in his cable service is tasteful and aesthetic, and is within the well established norms of good taste and
decency;
(vii)exploits social evils like dowry, child marriage.
(viii)promotes directly or indirectly production, sale or consumption of
(a) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants;
(b) infant milk substitutes, feeding bottle or infant foods.]
(3) No advertisement shall be permitted the objects whereof are wholly or mainly of a religious or political nature;
advertisements must not be directed towards any religious or political end.
(4) The goods or services advertised shall not suffer from any defect or deficiency as mentioned in the Consumer
Protection Act, 1986.
(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised
or any of its ingredients has some special or miraculous or super-natural property or quality, which is difficult of
being proved.
(6) The picture and the audible matter of the advertisement shall not be excessively 'loud'
(7) No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices or
shows them begging or in an undignified or indecent manner shall not be carried in the cable service.
(8) Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements.
(9) No advertisement which violates the standards of practice for advertising agencies as approved by the
Advertising Agencies Association of India, Bombay, from time to time shall be carried in the cable service.
(10) All advertisements should be clearly distinguishable from the programme and should not in any manner
interfere with the programme viz., use of lower part of screen to carry captions, static or moving alongside the
programme.

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PLEADINGS

It is humbly submitted before the Honble Supreme Court that in the pertinent case all the
aforementioned conditions have been openly flouted by XYZ Ltd. The terms better and
economic are vague and imprecise. The mere comparison of prices is not enough to make the
bold claim of better and economic deals41. ABC Ltd. has been entering into new contracts, and
its offers are now as cheap as XYZ Ltds42. Therefore, their claim is misleading to the
consumers, and is based on false and ambiguous grounds. There has been a direct attack to
denigrate ABCs reputation and the company has been disparaged.
The three elements of disparagement as established43are:
1) A false or misleading statement of fact has been made about the product
2) The statement either deceived, or has the capacity to deceive, substantial segment of
potential consumer
3) The deception is material, in that it is likely to influence consumers purchasing decision.

In the case of Reckitt & Colman V. Kiwi T.T.K. Ltd44, it has been stated that the respondent
cannot be permitted to openly condemn the other products available in the market. Aggressive
advertising is permissible to a limited extent, but not to the extent of disparaging the goods of
others. The court must consider the comparative mischief and inconvenience resulting from the
refusal or grant of injunction.45
It is most reverently submitted that the deliberate attempt on XYZ Ltd.s part to disparage ABC
Ltd. can be proved through the fact that the ad campaign was released with a malicious intent.
2.1.2

THAT MALICIOUS FALSEHOOD WAS INVOLVED ON THE PART OF XYZ LTD.

Malicious falsehood implies deliberate lying or making an intentionally false statement simply to
hurt another. Malicious falsehood is damage to a persons business reputation.46
For a plaintiff to succeed in an action based on malicious falsehood, the necessary ingredients as
established47 are:
41

P. 2, ph- 2, line 5 of the proposition

P. 2, ph- 2, line 4 of the proposition
43
Pepsi Co Inc and Ors V. Hindustan Coca Cola Ltd and Ors., (2003(27) PTC 305)
44
(63 (1996) DLT 29)
45
A K Porbunderwala V. Gulam Hussein, (AIR 1974 Bom 288)
46
Supra note 22
42

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PLEADINGS

(i)

A false statement is made which is calculated to cause financial damage;

(ii)

The statement is made maliciously with an intent to cause injury;

(iii)

The impugned statement has resulted in a special damage.

The malicious intent of XYZ Ltd. can be deciphered from the fact that their ad campaign was
launched on a Friday and disproportional spends were made on GRP, to take full advantage of
the weekend48. The statements are false, as ABC Ltds offers are currently as cheap as XYZ
Ltd.49, and the High Court of Delhi is yet to appreciate the evidence submitted by XYZ Ltd 50
completely. It is merely a deliberate attempt to malign the reputation of ABC Ltd., a firm that is
a household name and owns 40% of the market share in the industry51. XYZ Ltd., in fact, has
made false claims in the past as well52.
2.1.3

THAT XYZ LTDS AD AMOUNTED TO UNFAIR TRADE PRACTICE AND INFRINGEMENT OF

TRADE MARK

That XYZ Ltds ad amounted to an Unfair Trade Practice :

"Unfair trade practice"53 means a trade practice which, for the purpose of promoting the sale, use
or supply of any goods or for the provision of any service, adopts any unfair method or unfair or

47

Dabur India Ltd V. M/S Colortek Meghalaya Pvt. Ltd, (2005 Cri LJ 1901)
P. 2, ph- 3, line 2 of the proposition
49
Supra note 42
50
P. 2, ph- 6, line 7 of the proposition
51
P. 1, ph- 1, line 3 of the proposition
52
P. 1, ph- 3, line 2 of the proposition
53
Section 2(1)(r) OF The Consumer Protection Act, 1986- " unfair trade practice" means a trade practice which, for
the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair
method or unfair or deceptive practice including any of the following practices, namely:(1) the practice of making any statement, whether orally or in writing or by visible representation which,(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re- built, second- hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses
or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier
does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of
any goods that is not based on an adequate or proper test thereof: Provided that where a defence is raised to the
effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall
lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to be(i) a warranty or guarantee of a product or of any goods or services; or
48

MEMORIAL FOR PETITIONER

12

PLEADINGS

deceptive practice including the ones listed in clauses (ii), (iv) and clause (x) of the section 2(r)
of the Consumer Protection Act, 198654. Therefore, a service provider does not have the right to
disparage another persons services or goods. XYZ Ltds ad campaign clearly amounts to an
unfair trade practice as their claims are based on facts that have not been revised and are untrue.
That ABC Ltds trademark was infringed in the ad by XYZ. Ltd.:
Trade mark" means a mark capable of being represented graphically and which is capable of
distinguishing the goods or services of one person from those of others and may include shape of
goods, their packaging and combination of colors.55 Incase if an advertiser uses a competitors
trademark to make a comparison between his goods and those of his competitor, and in the
process disparages them, then such an act on the part of the advertiser would not only invoke
issues related to comparative advertising, and product disparagement, but would also invoke
issues related to trademark infringement.56
Section 29 of The Trademarks Act, 199957 covers infringement of registered trademarks. A
registered trademark is infringed by any advertising of that trademark if such advertising:
i)

Takes unfair advantage of and is contrary to honest practices

ii)

Is detrimental to its distinctive character

iii)

Is against the reputation of the trademark.

(ii) a promise to replace, maintain or rep- air an article or any part thereof or to repeat or continue a service until it
has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if
there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services,
have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to
refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers
generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or
services have been provided by the person by whom or on whose behalf the representation is made;
(x) Gives false or misleading facts disparaging goods, services or trade of another person. Explanation.-- For the
purposes of clause (1), a statement that is-(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on
anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made
available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the
person who had caused the statement to be so expressed, made or contained;
54
ibid
55
Section 2 (zb), The Trademarks Act 1999
56
Section 29(8), The Trademarks Act, 1999
57
ibid

MEMORIAL FOR PETITIONER

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PLEADINGS

Where the distinctive elements of a registered trademark consist of or include words, the
trademark may be infringed by the spoken use of those words as well as by their visual
representation.58
The question whether a particular ad is honest or not is to be decided from the perspective of a
reasonable consumer.59 In order to decide the question of disparagement the Court has to come to
the conclusion as to how many customers would be influenced by the comparative advertisement
and would not avail the petitioners services.60 If the claim made in the ad is materially false, it
would be dishonest.61In a suit for infringement of a trademark in which there is a prima facie
case, a temporary injunction ought to be granted.62
It is humbly contended that since ABC Ltd. has been in business for over 3 decades, and has
been the travel agent to most of the companies in the country63, its name is well known in the
market and it has a strong hold on the market share. The direct reference to its name in the ad has
infringed the companys trademark, and hence, a prima facie case has been established.

2.2

THAT ABC LTD. HAS SUFFERED IRREPARABLE LOSSES DUE TO THE AD

Irreparable injury means the one which cannot be compensated in terms of money64. While
considering granting temporary injunction, it is necessary to see whether interference is
necessary to protect the party applying for it from the particular kind of injury which is said to be
irreparable.65 The injury referred to in Order XXXIX, Rule 2 of the Civil Procedure Code66 means

58

Section 29 (9), The Trademarks Act, 1999

Pepsi Co Inc and ors. V. Hindustan Coca Cola Ltd. and Anr, (2003 (27) PTC 305)
60
LEXIS NEXIS BUTTERSWORTH, NEW DELHI 2003 P.346
61
DSG Retail Ltd V. Comet Group, (Plc (2002) FSR 899)
62
Khemraj V. M/s Garg and co., (AIR 1975 Delhi 130)
63
P. 1, ph- 1, line 2, 9 of the proposition
64
Supra note 22
65
Pishora Singh V. SmtLajo Bai, (1974 Rev. LR 644); (77 PLR 30)
66
Order XXXIX, Rule 2 of the Civil Procedure Code: 2. Injunction to restrain repetition or continuance of breach.(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind,
whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the
suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from
committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising
out of the same contract or relating to the same property or right.
(2) The court may by Order grant such injunction, on such terms, as to the duration of the injunction, keeping an
account, giving security, or otherwise, as the court thinks fit.Sub-rules (3) and (4) omitted by Act 104 of 1976, w.e.f.
1-2-1977.
59

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PLEADINGS

the injury caused by wrongful action or treatment, harm or damage. The object of the
interlocutory injunction is to protect the plaintiff against injury by violation of his right for which
he could not be adequately compensated in damages recoverable in the action if the uncertainty
were resolved in his favor at the trial.67
The expression irreparable injury means a material injury which cannot be adequately
compensated in damages. The injury need not be actual but may be apprehended. In a proper
case, the court would grant a temporary injunction to protect a party from incurring irreparable
injury.68
It is humbly submitted before the Honble court that the irreparable damage in the present case
has been done in two terms:
(i)

In terms of loss of goodwill.

(ii)

In terms of loss of business and sales.

Goodwill has been elaborately defined in Trego V. Hunt69 by Lord McNaughton as:
It is the whole advantage whatever it may be, of the reputation and connection of the firm,
which may have been built up by years of honest work or gained by lavish expenditure of
money.
The nature of goodwill was described by the House of Lords in IRC V. Muller & Co.'s
Margarine Ltd70 which was relied upon in M/S. S. C. Cambatta& Co. Private ...V. The
Commissioner of Excess71. It is a thing very easy to describe, very difficult to define. It is the
benefit and advantage of the good name, reputation, and connection of a business. It is the
attractive force which brings in custom. It is very difficult to say that goodwill is not property.
Goodwill is bought and sold every day. It may be acquired in any of the different ways in
which property is usually acquired. When a man has got it he may keep it as his own. He may
vindicate his exclusive right to it if necessary by process of law. He may dispose of it if he will
under the conditions attaching to property of that nature. Goodwill will be protected even if
there is no immediate damage. The defendant may not damage the goodwill as such, what he
does is damage the value of the goodwill to the claimant because, instead of benefiting from
67

Anand Prasad Agarwalla V. State of Assam V. Tarkeshwar Prasad & Ors., (AIR 2001 SC 2367); Barak Upatyaka
D.U. Karmachari Sanstha, (2009 5 SCC 694)
68
Upendra Das V. Krishna Sahu, (1971 1 CWR 548); (AIR 1972 Ori 12)
69
(1896, App. case, 7)
70
(9101 A. C. 217 H. L.)
71
(1961 SCR (2) 805)

MEMORIAL FOR PETITIONER

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PLEADINGS

exclusive rights to his property, the latter now finds that someone else is squatting on it. It is
for the owner of goodwill to maintain, raise or lower the quality of his reputation or to decide
who, if anyone can use it alongside him. The ability to do that is compromised if another can
use the reputation or goodwill without his permission and as he likes.
Moreover, XYZ Ltd. by way of negative publicity has violated Rule 2 of Chapter II, ASCI which
states:
Advertisements

shall not make unjustifiable use of the name or initials of any other firm,

company or institution, nor take unfair advantage of the goodwill attached to the trade mark or
symbol of another firm or its product or the goodwill acquired by its advertising campaign.
In the light of the above cited judgments, it is contended that XYZ Ltds ad is grossly
disparaging in nature and has, thereby, harmed the goodwill and reputation of ABC Ltd. XYZ
Ltd. has carried out negative publicity about ABC Ltd. that has created goodwill impairment, and
reduction of brand name recognition of ABC Ltd.
Impairments are negatively associated with corporate performance after the impairment,
indicating that goodwill, once written off, does not continue to produce operating income.72
Not only does it discontinue operating income, but also will have an obvious undesirable impact
on the following market recipients:
1) Adverse effects on various share market determinants
2) Negative impact on the lenders and financial intermediaries.
It is also humbly submitted before the Honble Court that in case the advertisement continues to
be circulated, ABC Ltd. will incur hefty losses in terms of goodwill which cannot be
compensated for in monetary terms i.e. will suffer irreparable injury.
2.3 THAT THE PRINCIPLE OF BALANCE OF CONVENIENCE LIES IN ABC LTDS FAVOR
Balance of Convenience literally means to balance the relief given to the plaintiff against the
injury that will be done to the defendant.73 The inconvenience to the plaintiff if injunction is not
granted would be balanced and compared with that to the defendant if it is granted. 74 The court

LI. Z. P. SHROFF, R. VENKATARAMAN, Goodwill Impairment Loss: Causes and Consequences. UNIVERSITY OF
MINNESOTA WORKING PAPER. 2006
73
Supra note 22
74
Orissa State Commercial Transport Corp. Ltd. V. Satyanarayan Singh, (1974 40 Cut LT 336)
72

MEMORIAL FOR PETITIONER

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PLEADINGS

will weigh the likely inconvenience or damage which would be suffered by the applicant if the
injunction is not granted against the likely inconvenience for the respondent if it is.
In Bikash Chandra Deb V. Vijaya Minerals Pvt. Ltd.75, the Honble Calcutta High Court
observed that issue of balance of convenience does not mean that the balance would be on one
side and not in favor of the other. There must be proper balance between the parties and the
balance cannot be a one-sided affair. In Antaryami Dalabehera V. Bishnu Charan
Dalabehera76, it was held that balance of convenience means comparative mischief for
inconvenience to the parties. In applying this principle, the Court has to weigh the amount of
substantial mischief that is likely to be done to the applicant if the injunction is refused and
compare it with that which is likely to be caused to the other side if the injunction is granted.77
It is humbly submitted that an important factor to be to be considered is whether any potential
injustice could be adequately compensated for by damages. In the pertinent case, the goodwill
and reputation of the firm cannot be monetarily compensated for since ABC Ltd. has been in
business for 3 decades, is the largest company in the country involved in travel and tourism
solutions, owns 40% market share and is the India travel partner for various MNCs78. The
damages paid by XYZ Ltd. cannot expiate for the reputation that the company has built over
such a long span of time. In addition, the company has been losing its clientele, and further
losses in terms of diminishing market share, turnover, international status and contact networks
will cause far more inconvenience to ABC Ltd. as compared to XYZ Ltd. ABC Ltd. is a
company that deals with international clients79, while XYZ Ltd. is based solely in India. It is
evident from this fact, that the losses incurred by ABC Ltd will be grave to a greater extent. ABC
Ltds trademark has also been infringed; therefore, the balance of convenience is clearly in ABC
Ltds favor.
In pursuance of the above arguments, it is humbly submitted that the mere facts that XYZ Ltd.
disparaged the petitioner with a malicious intention, due to which the company has incurred
extensive losses, substantiates the requisites of an interim injunction.

75

(2005 (1) CHN 582)

(2002 I OLR 531)
77
Anwar Elahi V. Vinod Misra And Anr., (1995 IVAD Delhi 576)
78
Supra note 18
79
ibid
76

MEMORIAL FOR PETITIONER

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PLEADINGS

Hence, it is humbly prayed before the Honble Court that an interim injunction should be granted
as all the three principles for the same viz., prima facie case, irreparable injury and balance of
convenience, have been satisfied by way of the arguments advanced.

MEMORIAL FOR PETITIONER

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PLEADINGS

CONTENTION 3: THAT THE IMPUGNED ADVERTISEMENT HARMS THE

GOODWILL AND REPUTATION OF MEGHNA.
The impugned advertisement finds a mention of Meghna, a celebrity, in a context that not only
derides women but also denigrates her reputation and goodwill. This has resulted in her celebrity
rights being violated. The petitioner, thus, submit that the Honble court, a bastion of the rights
of citizens shall protect the below mentioned rights conferred on the petitioner by the
Constitution of India.
3.1

THAT MEGHNA HAS CELEBRITY RIGHTS UNDER ARTICLE

21

OF THE CONSTITUTION THAT

HAVE BEEN VIOLATED BY XYZ LTD

Courts of India have recognized the three rights that a celebrity has under Article 2180 of the
Constitution which has been discussed in detail below:

Privacy rights

Publicity rights

Personality rights

3.1.1

WHO IS A CELEBRITY:

Celebrities have a sole right to exploit the value of being a

celebrity.81 Under the direct commercial exploitation of identity test, when an unauthorized use
of a persons identity is made that is both direct in nature and commercial in motivation, the
person whose identity has been misappropriated has by definition become a celebrity for the
right of public purposes.82
The Indian Copyright Act, 1957 does not define the word celebrity. But reference can be made
to the definition of a performer as given under Section 2(qq) of the same Act83.

Article 21 of the Constitution- Protection of life and personal liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law
81
White V. Samsung Elec Am. Inc., (971 F2d. 1395), (1397 9 thcir 1992), cert denied (113S.Ct.2443(1993))
82
HETHERINGTON LEE, direct commercial exploitation of identity: A new age for the right to publicity COLUMBIAVLA JOURNAL OF LAW AND ARTS, (17 (1992) 1)
83
.The Indian Copyright Act, 1957- Section 2(qq) : 24. performer' includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a
performance
80

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PLEADINGS

In the case of Irvine V. Talksport84, the image of a successful Formula1 driver was being used
without his consent in an advertisement for a radio station. The court held that he had a property
right in the goodwill attached to his image. The celebrity could be said to have a proprietary right
in the exclusive marketing for gain in his personality.85
With reference to what has been stated above, it can be established that Meghna falls within the
ambit of being a celebrity for the purpose of contending that she has celebrity rights as
discussed below. Moreover, she also has a property right in the goodwill attached to her image
which has been violated by XYZ Ltd. in the advertisement by stating that either believe the
female singer or just compare our prices online86 and making a mockery out of her character
and personality and hence harming her goodwill and reputation.
In the case of Phoolandevi V. Shekar Kapoor & others87, the Delhi High Court held that issues
need to be thoroughly examined and the implications of such exhibition on the private life of an
individual be scrutinized before permitting release of such films. Thus, a celebrity can protect his
/her name & image as a constitutional right.
3.1.2 CELEBRITY RIGHTS:

Privacy Rights - The Indian Courts on various occasions have upheld the view that Right
to Privacy is available to the Citizens of India as an ingredient in Right to Life provided in
Article 21 of the Constitution of India.88 The Courts have expressly stated that the right to
privacy is implicit in the Right to Life and Liberty guaranteed to the citizens of this
country by Article 2189.

In the case of ICC Development (International) Ltd V. Arvee Enterprises90, the right to privacy
as an independent and distinctive concept originated in the field of Tort law, under which a new
cause of action for damages resulting from unlawful invasion of privacy was recognized. This
right has two aspects which are but two faces of the same coin:
84

(2003 EWCA Civ. 423)

HAQUE AZMUL, 2003, India: face value Personality rights and celebrity endorsements
86
Supra note 19
87
(57 (1995) DLT 154)
88
Supra note 5
89
Kharak Singh V. State of UP &Ors., ([1964] 1 S.C.R.), (332--A.I.R. 1963 S.C. 1295 )
90
(CS) OS 1710/2002)
85

MEMORIAL FOR PETITIONER

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PLEADINGS

(1) The general law of privacy which affords a tort action for damages resulting from an
unlawful invasion of privacy and
(2) The constitutional recognition given to the right to privacy which protects personal privacy
against unlawful governmental invasion.
The first aspect of this right must be said to have been violated where, for example, a person's
name or likeness is used, without his consent, for advertising or non-advertising purposes or for
that matter, his life story is written whether laudatory or otherwise and published without his
consent as explained hereinafter.

Publicity Rights - Is the inherent right of every human being to control the commercial
use of his or her identity.91

Publicity rights can be best illustrated through the case of Midler V. Ford Motor Co & Others92.
The court granted relief to the plaintiff saying that publicity rights of people are their own
property and is also one of the attributes of ones identity.
Brook LJ in Douglas and Zeta Zones V. Hello Ltd93 has defined the right to publicity as An
exclusive right of a celebrity to the profits to be made through the exploitation of his fame and
popularity for commercial purpose.
The Supreme Court of India in Rajagopal V. State of Tamil Nadu94 recognized right of publicity
in the form of Right to Privacy as follows: the first aspect of this right must be said to have been
violated where, for example, a persons name or likeness is used, without his consent, for
advertising or non-advertising purposes or for any other matter.
In the case ICC Development (International) Ltd V. Arvee Enterprises95when ruling on the
alleged violation of publicity rights by the plaintiff, the judge stated that:

91

KELLER BRUCE P condemned to repeat the past: the reemergence of misappropriation and other common law
theories of protection for intellectual property, HARVARD JOURNAL OF LAW,AND TECHNOLOGY,(11(2)(1998)401)
92
1988, U.S. Court of Appeals, 9th Circuit, (849.F.2d 460)
93
(2005 EWCA Civ 595)
94
(AIR 1995 SC 264)
95
(CS) OS 1710/2002)

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PLEADINGS

The right of publicity has evolved from the right of privacy and can inhere only in an individual
or in any indicia of an individuals personality like his name, personality trait, signature, voice,
etc. An individual may acquire the right of publicity by virtue of his association with an event,
sport, movie, etc. Any effort to take away the right of publicity from the individuals, to the
organizer {non-human entity} of the event would be vocative of Articles 1996 and 2197 of the
Constitution of India. The right of Publicity vests in an individual and he alone is entitled to
profit from it.
In the pursuance of the above cited cases, it can be clearly concluded that the rights of publicity
of the celebrities are their own property. This includes an individuals personality like his name,
personality trait, signature, voice, etc. The individual alone can benefit from it. Moreover only
the individual has the right to exploit her fame and popularity for commercial purposes. In the
case at hand, Meghna too by the virtue of being a celebrity possesses the celebrity rights. And it
is submitted to the Honble court that her right to publicity has been violated by XYZ Ltd. By
referring to her in the advertisement98, XYZ Ltd. tried to make use of her goodwill by exploiting
her fame and popularity for commercial purpose. By doing so XYZ Ltd. has violated Meghnas
right to publicity and also violated Article 2199 of the Indian Constitution.

Personality Rights In Titan Industries Limited V. Ramkumar Jewelers100, since the

defendant had neither sought permission from the couple to use their photograph, nor
been authorized to do so by the plaintiff, the court held it liable not only for infringement
of the plaintiffs copyright in the advertisement, but also for misappropriation of the
couples personality rights. The court granted an interim injunction in favor of the
plaintiff while specifically recognizing the couples rights in their personalities.

In the present case, XYZ Ltd. by stating that either believe the female singer or just compare our
prices online has tried to deter Meghnas image.101 Her personality has been targeted in the ad as
she has been portrayed as a liar. It is humbly submitted to the Honble court that XYZ Ltd. in the

96

Supra note 8
Supra note 5
98
Supra note 19
99
Supra note 5
100
([CS(OS) 2662 of 2011])
101
Supra note 19
97

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PLEADINGS

process of doing so, violated her Personality Rights that have been guaranteed to her under
Article 21102 of the Constitution under the ambit of Right to Life.
3.2

THAT THE AD VIOLATES THE PROVISIONS OF INDECENT REPRESENTATION OF WOMENS

ACT, 1986:

In India, the legal provisions that regulate obscenity are Section 3103 and 4104 of the Indecent
Representation of Women (Prohibition) Act, 1986 and Section 67 of the Information Technology
Act. The said Act prohibits advertisements containing indecent representation of women. And the
publication or sending by post of books, pamphlets or in any form containing indecent
representation of women.
The Hon'ble Supreme Court in the case of Dr. Ramesh Prabhu V. Prabhakar Kashinath
Kunte & Ors.105 had an occasion to consider the ambit and scope of this fundamental freedom
and whether the words "decency or morality" therein have any restricted meaning. The
Supreme Court held thus:Two of the heads mentioned are: decency or morality. Thus any law which imposes
reasonable restrictions on the exercise of this right in the interest of decency or
morality is also saved by clause (2) of Article 19. The dictionary meaning of decency is
correct and tasteful standards of behavior as generally accepted; conformity with

102

Supra note 5
Section 3 of the Indecent Representation of Women Act, 1986- Prohibition of advertisements containing indecent
representation of Women: No person shall publish, or cause to be published, or arrange or take part in the
publication or exhibition of, any advertisement which contains indecent representation of women in any form
104
Section 4-Prohibition of publication or sending by post of books, pamphlets, etc; containing indecent
representation of women.- No person shall produce or cause to be produced, sell , let to hire, distribute, circulate or
send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph , representation or figure
which contains indecent representation of women in any form:
Provided that noting in this section shall apply to(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure
(i) the publication of which is proved to be justified as justified as being for the public good on the ground that such
book, pamphlet, paper, slide , film, writing, drawing, painting, photography, representation or figure is in the interest
of science, literature, art, or learning , art, or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purpose;any representation sculptured, engraved, painted or
otherwise represented on or in
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act,
1958 (24 of 1958); or
(ii) any temple, or on any car used or the conveyance of idols, or kept or used for any religious purpose; any film in
respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable.
105
(A.I.R. 1996 S.C. 1113)
103

MEMORIAL FOR PETITIONER

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PLEADINGS

current standards of behavior or propriety; avoidance of obscenity; and the

requirements of correct behavior (The Oxford Encyclopedic English Dictionary).
In Knuller (Publishing, Printing and promotions) Ltd. V. Director of Public
Prosecutions106 the meaning of "indecency" was indicated as under:...... Indecency is not confined to sexual indecency; indeed it is difficult to find any limit
short of saying that it includes anything which an ordinary decent man or woman would
find to be shocking, disgusting and revolting.......
In the pertinent case, the advertisement clearly targets Meghnas reputation in the market being
well aware of the fact that she is a sensation amongst the youngsters107.
3.3 THAT THE AD VIOLATES THE CHAPTER II OF ASCI:
For the purpose of controlling anti competitive advertisements, The Advertising Standards
Council of India (ASCI) has laid down a code of conduct. XYZ Ltd. has clearly violated the
Chapter II of Advertising Standards Council of India108 which is binding on every advertisement
that is carried on cable service as per the Advertising Code given out in the rule no. 7 of the
Cable Television Networks Rules, 1994.109

106

((1972) 2 ALL ER 898 )

Supra note 20
108
Advertisement should contain nothing indecent, vulgar, especially in depiction of women, or nothing repulsive
which is likely, in the light of generally prevailing standards of decency and propriety, to cause grave or widespread
offence.
109
Rule 7 of the Cable Television Networks Rules, 1994:
Advertising Code.
(1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should
not offend morality, decency and religious susceptibilities of the subscribers.
(2) No advertisement shall be permitted which
(vi) In its depiction of women violates the Constitutional guarantees to all citizens. In particular, no advertisement
shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that
emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in the family
and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his
cable service is tasteful and aesthetic, and is within the well established norms of good taste and decency;
(9) No advertisement which violates the standards of practice for advertising agencies as approved by the
Advertising Agencies Association of India, Bombay, from time to time shall be carried in the cable service.
107

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PLEADINGS

The Chapter II of ASCI110 also has been violated by XYZ Ltd. by circulating the advertisement
that was denigrating the character of Meghna, portraying her as a misleader and targeting her
goodwill in the market to obtain more sales.
3.4 THAT THE PROVISIONS OF THE CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995:
Rule 7 of the Cable Television Networks Rules, 1994111 contains the Advertising Code which
clearly prohibits the advertisements from offending morality and decency. XYZ Ltds ad is not
within the extent of decency as established by the Honble Supreme Court in the case of Dr.
Ramesh Prabhu v. PrabhakarKashinathKunte&Ors.112
In addition to violating the above mentioned laws, XYZ Ltds advertisement was also violative
of Rule 61K113 and Rule 7114 of the Cable Television Networks Rules, 1994.
Hence, it is most reverently submitted to the Honble Supreme Court that interim injunction may
be granted for XYZ Ltds ad campaign violates the provisions of the aforementioned statutes and
denigrates the reputation of Meghna. By referring to her in the advertisement, XYZ Ltd. tried to
make use of her goodwill by exploiting her fame and popularity for commercial purposes. ABC
Ltd,s goodwill and reputation in the market will also suffer from a setback as the disparaging ad
has been released with a malicious intent. Therefore, an interim injunction must be granted to
ABC Ltd. against the ad campaign launched by XYZ Ltd.

110

Supra note 107

Supra note 39
112
(A.I.R. 1996 S.C. 1113)
113
Rule 61k of the Cable Television Networks Rules, 1994: No programme should be carried in the Cable Service
which denigrates women through the depiction in any manner of the figure of a women, her form or body or any
part thereof, in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprive,
corrupt or injure the public morality, or morals
114
Supra note 39
111

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PRAYER

PRAYER

Wherefore, in light of issues raised, arguments advanced and authorities cited, it is

humbly prayed before the Honble Court that it may be graciously pleased to grant
an interim injunction against the aforementioned advertisement in favor of the
petitioner.

And for this act of kindness of your Lordship, the Petitioner shall as duty bound ever
pray.

SdCounsel for Petitioner

MEMORIAL FOR PETITIONER