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The Delhi High Court bench of Justice Manmohan, while considering a suit filed by Horlicks complaining infringement, disparagement and unfair trade practices against the defendant, HEINZ India Private Ltd (Complan) and hence, seeking damages and permanent injunction restraining the same, held that advertisement is a facet of commercial speech which is protected by Article 19(1)(a) of the Constitution of India. Further it was added that the same can be restricted only in accordance with law enacted under Article 19(2) of the Constitution. The case was represented by Senior Advocate Chander M Lall for the appellant and Amit Sibal for defendant.
The court further observed that the Complan advertisement, showing the comparison between two cups of Horlicks and one cup of Complan, could not be considered misleading and that the primary objective of Sections 29(8) and 30(1) of the Trade Marks Act was to allow comparative advertising as long as use of competitor’s mark is honest. The court however, rejected the defendant’s contention that the judgment of the Supreme Court in Tata Press, which equated commercial advertisement to free speech and held that a corporate entity is entitled to protection under Article 19(1)(a) of the Constitution, is per incuriam stating that it is not open to a high court to hold that the Supreme Court judgment is per incuriam.
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