(Defamation of Goods / Goodwill and Reputation — Comparative Advertising)
Defamation of goods — Goodwill and commercial reputation — Independent civil wrong
Defamation of goods (trade disparagement / slander of goods) is a distinct cause of action, independent of trade mark infringement or passing off — Protected interest is commercial goodwill and reputation of the plaintiff’s product — Court must examine whether the impugned advertisement tends to lower the estimation of the plaintiff’s goods in the minds of right-thinking members of the public.
[Paras 34–35, 37–38]
Defamation of goodwill — Test — Right-thinking members of society
For an advertisement to be defamatory, the imputation must have a natural and probable tendency to injure the reputation or goodwill of the plaintiff’s goods in the eyes of right-thinking members of society generally — Perception of a limited or sectarian class of users is not determinative.
[Paras 37–38, 43–44]
Defamation of goods — Comparison permissible — Disparagement impermissible
A trader may commend his own goods and claim superiority (puffery) — However, he may not make false representations concerning the quality or character of a rival’s goods, nor portray them as harmful, worthless or undesirable — Principle reiterated: “Comparison – Yes; Disparagement – No.”
[Paras 34–35]
Defamation of goodwill — Identification of rival product — Indirect reference sufficient
In cases of disparagement, it is not necessary that the rival product be named — Indirect or implied reference suffices if the overall impression of the advertisement identifies the plaintiff’s goods and conveys a derogatory message injuring goodwill.
[Paras 35, 39–41]
Defamation of goods — Overall impression — Not frame-by-frame
Impugned advertisement must be assessed as a whole, from the standpoint of an average, reasonable viewer — Excessive frame-by-frame dissection is impermissible — Determinative factor is the overall message conveyed and its impact on the reputation of the plaintiff’s goods.
[Paras 34–36]
Defamation of goodwill — Falsity and tendency to injure
Where advertisement conveys that use of the rival’s product is unsafe, ineffective, or invites harm (such as permitting germs), such representation amounts to prima facie disparagement, having a direct tendency to injure goodwill, unless truthfully substantiated.
[Paras 27, 34–35]
Defamation of goods — Evidence — Consumer testimony not mandatory
In an action for disparagement, direct evidence of consumers is not indispensable — Court may itself assess the advertisement from the standpoint of a reasonable viewer — Injury to goodwill may be inferred from the nature, reach and message of the impugned advertisement.
[Paras 15–16, 34–35]
Damages — Defamation of goodwill — Punitive damages
Where defendant’s conduct demonstrates deliberate and calculated disparagement of a rival’s established product, punitive damages may be awarded even if exact quantification of compensatory loss is difficult — Purpose is deterrence against unfair competitive practices.
[Paras 16, 24, 32–33]
Ratio (Goodwill-Defamation )
An advertisement that goes beyond permissible puffery and conveys a false and derogatory message portraying a rival’s product as unsafe, ineffective or harmful, thereby lowering its estimation in the eyes of right-thinking members of the public, constitutes defamation of goods and actionable injury to goodwill, warranting injunctive relief and, in appropriate cases, punitive damages.
II. LEGAL ANALYSIS
1. Defamation of Goods — Governing Legal Principle
The Court correctly proceeded on the settled principle that:
Defamation of goods is a distinct tort, protecting commercial goodwill, and is independent of infringement or passing off.
The legal inquiry therefore was:
Whether the impugned advertisement had a natural and probable tendency to lower the estimation of the plaintiff’s goods in the minds of right-thinking members of the consuming public.
2. Test Applied by the Court
The Court applied the following legal tests, though not explicitly grouped earlier:
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Overall impression test
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Average consumer with imperfect recollection
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Derogatory tendency, not mere comparison
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Likelihood of injury to goodwill, not proof of loss
These tests are classic defamation-of-goods principles.
3. Application to the Facts — Why Defamation Failed
(a) No Clear Derogatory Assertion
The Court found that:
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the advertisement did not explicitly state that the competing product was harmful, unsafe, or worthless;
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no inevitable inference of reputational harm arose.
Thus, the threshold requirement of defamatory tendency was not satisfied.
(b) Visual Depiction Insufficient to Harm Goodwill
The visuals relating to:
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stubble,
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skin tone, or
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alternative method of hair removal
were held to be:
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fleeting,
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ambiguous, and
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incapable of conveying a definite defamatory message.
The Court held that speculative or subjective interpretations cannot ground a goodwill-defamation claim.
(c) Identification Alone Not Enough
Even assuming indirect identification, the Court held that:
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identification without a derogatory message does not injure goodwill;
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defamation lies in what is conveyed, not merely who is referenced.
4. Quantified Superiority — Partial Recognition of Goodwill Risk
Importantly, the Court did recognise a reputational concern when it restrained the claim:
“up to two times smoother”
The Court reasoned that:
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quantified superiority conveys measurable inferiority of competing products,
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such a claim, without objective substantiation, has a tendency to injure goodwill, and
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therefore warranted limited injunctive relief.
This is a clear application of goodwill-defamation principles, even though framed as a substantiation issue.
5. Why No Damages or Full Injunction Were Granted
The Court concluded that:
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except for the quantified claim,
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the advertisement did not cross the line from competition into defamation, and
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no prima facie injury to goodwill was established.
Accordingly, blanket restraint or damages were not justified.
III. SYNTHESISED FINDING ON FACTS AND LAW
Key Finding
The plaintiff failed not because goodwill defamation is legally irrelevant, but because on facts the advertisement did not convey a false or derogatory message capable of lowering the commercial reputation of the plaintiff’s goods.
IV. CORRECT LEGAL POSITION EMERGING
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Defamation of goodwill is an independent tort
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Identification alone is insufficient
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Derogatory tendency is the core test
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Quantified superiority may injure goodwill
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Courts may grant tailored relief instead of total injunction
V. CONCLUSION
On a holistic assessment of the advertisement, the Court correctly held that the impugned material did not, except to a limited extent, have the natural and probable tendency to injure the goodwill or commercial reputation of the plaintiff’s product, and therefore did not constitute actionable defamation of goods warranting comprehensive injunctive relief.
