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 RESPONDENT

CMR 4TH NATIONAL MOOT COURT COMPETITION

MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS:

TABLE OF CONTENTS.............................................................................................................. i
ABBREVIATIONS.....................................................................................................................iii
INDEX OF AUTHORITIES.....................................................................................................v
STATEMENT OF JURISDICTION......................................................................................viii
QUESTIONS PRESENTED...................................................................................................... ix
STATEMENT OF FACTS.................................................................................................... x
SUMMARY OF ARGUMENTS.............................................................................................. xii

PLEADINGS
CONTENTION 1: THAT THE PETITION BE DISMISSED AS NO QUESTION OF LAW
IS INVOLVED AND NO MISCARRIAGE OF JUSTICE WAS UNDERTAKEN
1.1 THAT

NO

QUESTION

OF

LAW

IS

INVOLVED

IN

THE

PERTINENT

CASE...............................................................................................................1
1.2 THAT THERE WAS NO MISCARRIAGE OF JUSTICE AGAINST ABC LTD..................3
1.3 THAT ABC LTDS CLAIMS ARE VEXATIOUS, SPECULATIVE AND MALAFIDE
1.3.1 That ABC LTDs claims are vexatious............................................................4
1.3.2 That the claims are speculative in nature.......................................................4
1.3.3 That the claims were instituted malafide........................................................5

CONTENTION 2: THAT INTERIM INJUNCTION SHOULD NOT BE GRANTED TO

ABC
2.1 THAT XYZ LTDS CLAIM IS COMPARATIVE IN NATURE..............................................7
2.2THAT THE BALANCE OF CONVENIENCE IS IN XYZ LTDS FAVOR..........................8
2.3 THAT AN INJUNCTION CANNOT BE GRANTED WHEN AN EQUALLY EFFICACIOUS
REMEDY IS AVAILABLE-SECTION 4(H), SPECIFIC RELIEF ACT, 1963. ............................9

MEMORIAL FOR THE RESPONDENT

ii

TABLE OF CONTENTS

CONTENTION 3: THAT THE ALLEGATION THAT THE ADVERTISEMENT DRAWS

FROM MEGHNAS GOODWILL AND REPUTATION IS NOT TENABLE
3.1 THAT MEGHNA HAS NOT BEEN REFERRED TO IN THE ADVERTISEMENT.................11
3.2 THAT MEGHNA DID NOT POSSESS ANY GOODWILL THAT COULD HAVE BEEN
UNFAIRLY USED BY XYZ LTD....................................................12
3.3 THAT MEGHNA IS NOT BEING DENIGRATED IN THE ADVERTISEMENT.....................14
3.4 THAT XYZ LTD IS PROTECTED BY ARTICLE 19OF THE COSTITUTION I.E. FREEDOM
OF SPEECH..................................................................................................................................19

PRAYER......xiii

MEMORIAL FOR THE RESPONDENT

iii

LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

AIR: All India Report

Art: Article

ALL ER: All England Law Reports

p.: page

AC: Appeal Cases

ACC: Accident and Compensation Case

ACJ: Accidents Claims Journal

ALT: Andhra Law Times

CriLJ: Criminal Law Journal

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

MEMORIAL FOR THE RESPONDENT

iv

LIST OF ABBREVIATIONS

Del: Delhi

GRP :Gross Rating Point

DLT: Delhi Law Times

Bom: Bombay

Pvt. : Private

Anr: Another

FSR: Fleet Street Reports

Rev. LR: Review Law Reports

PLR: Patna Law Reports

Ori: Orissa

ITR: Income Tax Reports

M/S: Messers

OLR: Office of Legislative Research

Ph. : Paragraph

MNC: Multi National Company

Cert.: Certificate

EWCA Civ: Court of Appeal Civil Division

UP: Uttar Pradesh

Honble: Honorable

ASCI: Advertising Standards Council of India

Kar LJ: Karnataka Law Journal

Ad. : Advertisement

S.I. : Sub Inspector

MEMORIAL FOR THE RESPONDENT

INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

TABLE OF STATUTES

The Constitution of India

The Civil Procedure Code, 1908

The Trademarks Act, 1999

The Consumer Protection Act, 1986

The Indecent Representation of Women (Prohibition) Act, 1986

The Information Technology Act,2000

The Indian Penal Code, 1860

The International Covenant on Civil and Political Rights, 1966

The Specific Relief Act, 1963

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,

MEMORIAL FOR THE RESPONDENT

Volume II,

4th

Ed., 1999

vii

INDEX OF AUTHORITIES

TABLE OF CASES
A~C

Ajmera Housing Corpn. V. Amrit M. Patel, (1998) 6 SCC 500

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

Anwar Elahi V. Vinod Misra and Anr., 1995 IVAD Delhi 576

Bikash Chandra Deb V. Vijaya Minerals Pvt. Ltd, 2005 (1) CHN 582

Chandra Bansi Singh V. State of Bihar, (1984) 4 SCC 103: AIR 1984 SC 1572

Commissioner of Income-tax V. B. C. Srinivasa Setty, [1981] 128 ITR 294 (SC)

D~I

Dr.D.C. Saxena V. Hon'Ble The Chief Justice Of India, AIR 1996 SC 2481

Dabur India Ltd vs. Colortek Meghalaya Pvt. Ltd, 2010(42)PTC88(Del)

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

Dr. Ramesh Prabhu V. Prabhakar Kashinath Kunte & Ors., A.I.R. 1996 S.C. 1113

Deepa And Ors. V. S.I. Of Police, And Anr, 1986 CriLJ 1120

Inland Revenue Commissioners V. Muller & Co.s.Margarin, Ltd., (1901) A.C. 217
(H.L.)

K~N

Kasthuri V. Baskaran, ( 2004 ) 1 MLJ 175

K. Thakshinamoorthy And Another V. State Bank Of India, Arasaradi, AIR 2001

Mad 167

K.S. Balasubramaniam V. S. Munuswamy, 2000(2) CTC 417

Knuller (Publishing, Printing and promotions) Ltd. V. Director of Public

Prosecutions, (1972) 2 ALL ER 898

M/S. S. C. Cambatta & Co. Private ... V. The Commissioner Of Excess, 1961 SCR
(2) 805

Municipal Board, Pratapgarh V. Mahendra Singh, (1982) 3 SCC 331: AIR 1982 SC
1493

Navalram Laxmidas Devmurari V. Vijayaben Jayvantbhai Chavda, AIR 1998Guj17

MEMORIAL FOR THE RESPONDENT

vii

INDEX OF AUTHORITIES

P~R

Pritam Singh case, AIR 1950 SC 169, 172

Queen V. Hicklin, (1868) L.R. 3 Q.B. 360

Reckitt Benckiser V. Hindustan Lever, 2008 (38) PTC 139 (Del)

Rasiklal Vaghajibhai Patel V. Ahmedabad Municipal Corpn., (1985) 2 SCC 35: AIR
1985 SC 504

Reckitt and Colman of India Ltd. V. M.P. Ramchandran and Anr 1999 (19) PTC
741

Reckitt and Coleman of India ltd V. Kiwi TTK ltd, 63 (1996) DLT 29

Ranjit D. Udeshi V. State Of Maharashtra, 1965 AIR 881 1965 SCR (1) 65

S~T

Southern Petrochemical Industries Corpn. Ltd. V. Madras Refineries Ltd., (1998) 9

SCC 209

Sir Chunilal V. Mehta & Sons, Ltd V. The Century Spinning And ..., 1962 AIR
1314, 1962 SCR Supl. (3) 549

Sanwat Singh V. State of Rajasthan, AIR 1961 SC 715: (1961) 3 SCR 120

Seethalakshmi Ammal V. Controller of Estate Duly, [1966] 61 ITR 317, 331

Tata Press Ltd V. Mahanagar Telephone Nigam Ltd, 1995 (5) SCC 139

Trego V. Hunt, (1896), App. case, 7

MEMORIAL FOR THE RESPONDENT

viii

STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The respondent humbly approaches the Honble Supreme Court of India in reply of the
Special Leave Petition filed by the petitioner under Article 136 of the Constitution of India.

MEMORIAL FOR THE RESPONDENT

ix

QUESTIONS PRESENTED

QUESTIONS PRESENTED

1. WHETHER ABC LTDs CLAIMS ARE VEXATIOUS, SPECULATIVE AND ARE

INSTITUTED MALA FIDE?

2. WHETHER INTERIM INJUNCTION SHOULD BE GRANTED TO ABC LTD?

3. WHETHER MEGHNA HAS A RIGHT TO BE IMPLEADED IN THE

PERTINENT PROCEEDINGS?

MEMORIAL FOR THE RESPONDENT

STATEMENT OF FACTS

STATEMENT OF FACTS

ABC Ltd., a company involved in the business of travel and tourism services, has its
incorporated office in Delhi. It registered its trademark 20 years ago. Recently, XYZ Ltd., a
company incorporated in Mumbai, also entered the same line of business. XYZ Ltd. has been
able to ensure that it has very cheap tickets provided to its consumer and has successfully
negotiated deals with 10 companies, becoming their official travel agent. In October 2013, XYZ
started an advertising campaign, with the bold headline: Lowest Fares Assured No other
company can give you a better deal. ABC immediately filed a complaint before the Advertising
Standards Council of India, alleging that the claim of XYZ is false. In a meeting of the Fast
Track Complaints Council, it was held that the advertisement of XYZ was in violation of the
Code for Self Regulation in Advertising. The FTCC found that while the advertiser did provide
lower fares than the complainant, it could not prove lower fares than all travel companies. The
advertisement violated Chapter I.1 and I.4 and I.5 of the ASCI Code and XYZ immediately
withdrew the advertisement campaign. ABC, then, started re-negotiating its contracts to arrive at
even better deals and started an advertising campaign employing the services of Meghna, a
singer who recently gained popularity among the youth. Three weeks after ASCIs decision,
XYZ started another campaign, with the comparative 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 was released on various
platforms. On Monday, ABC filed a suit before the Delhi High Court alleging disparagement and
malicious falsehood by XYZ. It also filed an application seeking an immediate interim
injunction. Impleading herself in the suit, Meghna also sought an immediate injunction of the
advertisement, alleging that the advertisement campaign unfairly draws benefit from her
goodwill and reputation and that the tone of the advertisement derides women. The High Court,
did not grant the interim injunction. ABC Ltd. and Meghna filed an appeal before the Division
Bench. The Division Bench held that the order of the Single Judge did not warrant interference
by the Appellate Court, as it was not shown that the order was arbitrary, capricious or perverse or
that the court had ignored the settled principles of law. Both ABC and Meghna preferred to
file a Special Leave Petition before the Supreme Court against the order of the Division Bench.

MEMORIAL FOR THE RESPONDENT

xi

SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

I.

THAT THE PETITION BE DISMISSED AS NO QUESTION OF LAW AND

MISCARRIAGE OF JUSTICE IS INVOLVED :
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 respondent, being a newly incorporated
company, will be more inconvenienced than ABC Ltd. if the said advertisement is
prohibited.

II.

THAT THE INTERIM INJUNCTION SHOULD NOT BE GRANTED TO ABC

LTD. :
Judgments over the years have established that comparative claims are a legitimate way
of advertising and that they are allowed as long as they dont disparage the product of the
competitor. It is protected by Article 19(1) of the Indian Constitution. According to
Article 41(h) of the Specific Relief Act 1963, an interim injunction cannot be granted
when an equally efficacious remedy is available. In the present case, XYZ Ltd. was
merely making a comparative claim and in the process, it did not malign the reputation of
ABC Ltd. Besides, injunction is not the only remedy available in the pertinent case.

III.

THAT ALLEGATION THAT THE ADVERTISEMENT DRAWS BENEFIT

FROM MEGHNAS GOODWILL AND REPUTATION IS NOT TENABLE :
Meghna has not been mentioned in the advertisement. Even if any reference was made no
action would lie as she has not been denigrated and it does not harm her goodwill and
reputation. Therefore, she has no reason to be impleaded in the proceedings. Moreover,
XYZ Ltd released the ad under the protection of Article 19 of the Indian Constitution.
Article 3 read with Article 19 of the Universal Declaration of Human Rights grants to
everyone liberty and right to freedom of opinion and expression. Article 19 of the
International Covenant on Civil and Political Rights, 1966 provides that everyone shall
have the right to freedom of expression, to receive and impart information and ideas of all
kinds.

MEMORIAL FOR THE RESPONDENT

PLEADINGS

PLEADINGS

CONTENTION 1: THAT THE PETITION BE DISMISSED AS NO QUESTION OF LAW

AND MISCARRIAGE OF JUSTICE IS INVOLVED
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 is based on vexatious and speculative grounds,
and the same should not be granted. The Honble High Court of Delhi denied the grant of an
interim injunction to ABC Ltd. as no prima facie case could be established before the Honble
Court. Proving a prima facie case is the primary essential of an interim injunction as established
by judicial precedents over the years1. ABC Ltds submissions regarding the Honble Court not
taking into purview all the principles of law are, therefore, frivolous.

1.1 THAT NO QUESTION OF LAW IS INVOLVED IN THE PERTINENT CASE

It is humbly submitted before the Honble Court that in the case of Southern Petrochemical
Industries Corpn. Ltd. V. Madras Refineries Ltd. 2, the Honble Supreme Court held:
The Court does not ordinarily interfere with the interim orders of the High Court save under
very exceptional circumstances.
The same was upheld by the Apex Court in another judgment in the case of Ajmera Housing
Corpn. V Amrit M. Patel3.
The observations of Supreme Court in Pritam Singh case4 are:
Special leave will not be granted unless it is shown that exceptional and special circumstances
exist, that substantial and grave injustice has been done and that the case in question presents
features of sufficient gravity to warrant a review of the decision appealed against.

S.M. Dyechem Ltd. V. M/s. Cadbury (India) Ltd, (AIR 2000 SC 2114)
((1998) 9 SCC 209)
3
((1998) 6 SCC 500)
4
(AIR 1950 SC 169, 172)
2

MEMORIAL FOR THE RESPONDENT

PLEADINGS

According to Section 96 of the Civil Procedure Code, 19085, no appeal shall lie unless there is a
question of law involved in the case. Section 99 of CPC, 19086 states that a decree cannot be
modified for an error or irregularity not affecting the merits of the case or the jurisdiction. If the
general principles to be applied in determining the questions are well settled and the
only question was of applying those principles to the particular fact of the case it would not be
a substantial question of law.7 In the exercise of its jurisdiction under Article 1368 of the
Constitution of India the Court may not interfere with the order of the High Court on equitable
grounds even though it finds the decision indefensible.9 Therefore, the Honble Supreme Court is
requested not to base its decision on the principle of equity.
It is humbly submitted that in the instant case, no question of law is involved as the decision of
the High Court of Delhi was given after taking into consideration every legal aspect associated
with interim injunction, which the petitioner failed to establish10.

1.2 THAT THERE WAS NO MISCARRIAGE OF JUSTICE AGAINST ABC LTD.

Decided cases establish that the Supreme Court will grant special leave to appeal in exceptional
cases where grave and substantial injustice has been done by disregard to the forms of legal

Section 96 of the CPC 1908- Appeal from original decree:

(1) Save where otherwise expressly provided in the body of this code or by any other law for the time being in
force, an appeal shall lie from every decree passed by any court exercising original jurisdiction the court authorized
to hear appeals from the decisions of such court.
(2) An appeal may lie from an original decree passed ex pane.
(3) No appeal shall lie from a decree passed by the court with the consent of parties.
[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of
small cause, when the amount or value of the subject-matter of the original suit does not exceed.
6
Section 99 of the CPC 1908- No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction:
No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any
misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the
suit, not affecting the merits of the case or the jurisdiction of the Court
7
Sir Chunilal V. Mehta & Sons, Ltd V. The Century Spinning And ..., (1962 AIR 1314, 1962 SCR)
8
Article 136 of the Constitution of India- 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
9
Municipal Board, Pratapgarh V. Mahendra Singh, ((1982) 3 SCC 331), (AIR 1982 SC 1493); Chandra Bansi Singh
V. State of Bihar, ((1984) 4 SCC 103), (AIR 1984 SC 1572)
10
P. 2,ph- 6,line 1 of the proposition

MEMORIAL FOR THE RESPONDENT

PLEADINGS

process or violation of the principles of natural justice.11 In the pertinent case, there are no
exceptional circumstances and no injustice towards ABC Ltd. has been carried out:
Miscarriage of justice implies returning an unfair verdict based on the evidence presented as a
legal justice failure.12 It is humbly submitted that in the pertinent case no injustice towards ABC
Ltd. is conducted as all the principles of granting an interim injunction were taken into account13.
All the facts regarding the case were duly considered, and the evidence submitted by XYZ Ltd.
was appreciated by the Court. The company has not been wronged in any manner, and their
claims are false and ambiguous.
In the case of Sri Gowrishankara Swamigalu V. Sri Siddhaganga Mutt14, it was held that the
existence of a prima facie case is the harbinger to investigate other aspects of an interim
injunction. If no prima facie case is established, balance of convenience and irreparable loss need
no consideration. ABC Ltd. failed to establish a prima facie case in the Honble Delhi High
Court.15
The Constitution of India explicitly protects freedom of speech and expression under Article
19(1)(a)16. In reference to this Article, the Supreme Court of India has held advertisements to be
commercial free speech.17 In the case of Reckitt Benckiser V. Hindustan Lever18, it was held
that mere generic puffery is not actionable, and comparative advertising is permissible.
It is most reverently submitted before the Honble Supreme Court that ABC Ltd. is not
susceptible to any losses, as the ad does not disparage its reputation19, and comes under the ambit
of comparative advertising20. XYZ Ltd. has, therefore, not damaged or maligned ABC Ltds

11

Sanwat singh V. State of Rajasthan, (AIR 1961 SC 715), ((1961) 3 SCR 120)
BLACKS LAW LEXICON, Ed. 9th
13
Supra note 10
14
(ILR 1989 KAR 1701), (1989 (2) Kar LJ 548)
15
Supra note 10
16
Article 19(1)(a) of the constitution- (1) All citizens shall have the right:
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(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
17
Tata Press Ltd V. Mahanagar Telephone Nigam Ltd, (1995 (5) SCC 139)
18
(2008 (38) PTC 139 (Del))
19
Supra note 10
20
P. 1, ph- 7, line 2 of the proposition
12

MEMORIAL FOR THE RESPONDENT

PLEADINGS

Goodwill or reputation. No losses in terms of trademark infringement have occurred, as ABC

Ltd. is not a registered trademark.21 Under Section 2722 of the Trademarks Act 1999, it has been
stated that no action for infringement of an unregistered trademark can be brought. Under
Section 3023 of the same Act, it is stated that even a registered trademark is not infringed if it is
in accordance with honest practices industrial or commercial matters, and is not taking unfair
advantage of or is detrimental to the distinctive character of the trademark. Based on the
aforementioned cases, it can be concluded that the trademark of the company was in no manner
infringed and no malicious intent on XYZ Ltds part was involved. It was merely making a claim
regarding its own services without any intention of maligning another companys reputation.
1.3 THAT ABC LTDS CLAIMS ARE VEXATIOUS, SPECULATIVE AND MALA FIDE

That ABC Ltds claims are vexatious

A proceeding is said to be vexatious when the party bringing it is not acting bona fide, and
merely wishes to annoy the opponent, or when it is not calculated to lead to any practical result.
Such a proceeding is often described as frivolous and vexatious, and the court may stay it on
that ground.24
It is humbly submitted that in the pertinent case the submissions made by ABC Ltd. are false and
the grounds for the same are frivolous and ambiguous. The Honble High Court of Delhi has
already passed a judgment on the interim injunction considering every aspect of the law 25, and
XYZ Ltd. has submitted sufficient evidence to prove that its claims in the ad are not
misleading26. Hence, ABC Ltds claims regarding the Honble Delhi High Courts analysis of the
21

Section 25, The Trademarks Act 1999- Duration, renewal, removal and restoration of registration:
(1) The registration of a trade mark, after the commencement of this Act, shall be for a period of ten years, but may
be renewed from time to time in accordance with the provisions of this section
22
Section 27, The Trademark Act 1999- No action for infringement of unregistered trade mark: (1) No person shall
be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered
trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services
as the goods of another person or as services provided by another person, or the remedies in respect thereof.
23
30. Limits on effect of registered trade mark.(1) Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the
purposes of identifying goods or services as those of the proprietor provided the use(a) is in accordance with honest practices in industrial or commercial matters, and
(b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade
mark.
24
Supra note 12
25
Supra note 10
26
P. 2, ph- 4, line 2 of the proposition

MEMORIAL FOR THE RESPONDENT

PLEADINGS

evidence27 are false as the Court has already verified the truth regarding XYZ Ltds statement.
All the principles of interim injunction are inter-related, and it is inevitable to prove all three.28
Therefore, since the petitioner failed to establish a Prima Facie case 29, an interim injunction
cannot be granted.

That the claims are speculative in nature

The term speculative implies prospective or anticipated damages from the same acts or facts
constituting the present cause of action, but which depend upon future developments which
are contingent, conjectural, or improbable.30 In the instant case, the suit was filed by ABC Ltd.
within three days of the ads release31. It is impossible to judge beforehand the losses that the
company had or could incur in future. The suit was filed in haste, without much contemplation. It
is entirely speculative in nature as it is not possible at such an early stage to figure the damages
that the company would suffer. Hence, the application for interim injunction must be dismissed
as ABC Ltd has filed for it without considering the legal aspects involved in the pertinent case.

That ABC Ltds claims were instituted mala fide

The term mala fide implies bad faith/ in bad faith.32 The Court may refuse to give relief under
Article 136 of the Constitution33 to a person who does not come before it with clean hands, for
example, if he has suppressed some facts.34 It is most respectfully submitted that ABC Ltd. in the
pertinent case had a malicious intention behind filing for an interim injunction. The submissions
made by ABC Ltd. regarding the High Courts order are based on false and ambiguous grounds.
The fact that ABC Ltd. has been losing its clientele to XYZ Ltd.s cheaper and better deals is one

27

P. 2, ph- 7, line 1 of the proposition

Nawab Mir Barkat Ali Khan V. Nawab Zolfiquar Jah Bahadur, (1975 (1) An WR 32); Iruvaram Jayammla V.
Padmanathamma, (1978 (2) An WR 308)
29
Supra nte 10
30
Supra note 12
31
P.2,ph- 1, line 7 of the proposition
32
Supra note 12
33
136. 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
34
Rasiklal Vaghajibhai Patel V. Ahmedabad Municipal Corpn., ((1985) 2 SCC 35): (AIR 1985 SC 504)
28

MEMORIAL FOR THE RESPONDENT

PLEADINGS

of the several factors instituting the mala fide act35. ABC Ltd. being a well established company
in the business of travel and tourism36 has filed for an interim injunction against XYZ Ltds
advertising campaign as XYZ Ltd. has successfully offered cheaper and better deals in a short
span of time, and therefore, stands as a strong competitor.
Therefore, in the light of the arguments advanced it is humbly contended before the Honable
Supreme Court that the petition for an interim injunction presented by ABC Ltd. must be
dismissed, as no cause of action against XYZ Ltd. can be proved by the petitioner.

35

P. 1, ph- 2, line 7 of the proposition

P. 1, ph- 1, line 2 of the proposition

36

MEMORIAL FOR THE RESPONDENT

PLEADINGS

CONTENTION 2: THAT INTERIM INJUNCTION SHOULD NOT BE GRANTED TO

ABC LTD.
2.1 THAT XYZ LTDS CLAIM IS COMPARATIVE IN NATURE
Comparative Advertising: a way of advertising that places one product as better than another by
comparison. It is also known as competitive advertising.37
Judgments38 over the years have established that comparative advertising is a legitimate way of
advertising a product by anyone though by making a comparative claim, the goods of another
cannot be disparaged as this would fall under unfair trade practices under Section 2(r) of the
Consumer Protection Act, 198639.

37

Supra note 12
Dabur India Ltd V. Wipro Ltd, (129 (2006) DLT 265); Reckitt and Coleman of India ltd V. Kiwi TTK Ltd, (63
(1996) DLT 29); Dabur India Ltd V. Colortek, Meghalaya Pvt Ltd, (2009(42) PTC 88)
39
Section 2(r) of the Consumer Protection Act 1986- 1"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
(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
38

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PLEADINGS

Further, the Constitution of India explicitly protects freedom of speech and expression in Article
19(1) (a)40. In reference to this article, the Supreme Court of India has held advertisements to be
commercial free speech. 41
It is humbly submitted that XYZ Ltd. was making a comparative claim and that it, in no way, has
disparaged ABC Ltd.42 In the case of Dabur India Ltd V. Colortek Meghalaya Pvt. Ltd43, it was
held that certain factors have to be kept in mind while deciding a question of disparagement.
These factors are: (i) intent of the commercial (ii) manner of the commercial; and (iii) storyline
of the commercial and the message sought to be conveyed.

(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;
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a
bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a
period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business
is carried on, the nature and size of business, and the nature of the advertisement. Explanation.-- For the purposes of
clause (2)," bargaining price" means-(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain
price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits-(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating
impression that something is being given or offered free of charge when it it is fully or partly covered by the amount
charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly,
the sale, use or supply of any product or any business interest;
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers,
knowing or having reason to believe that the goods do not comply with the standards prescribed by competent
authority relating to performance, composition contents, design, constructions, finishing or packaging as are
necessary to prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to
provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost
of those or other similar goods or services.
(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act
applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.
40
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;
(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 practice any profession, or to carry on any occupation, trade or business
41
Tata Press Ltd V. Mahanagar Telephone Nigam Ltd, ((1995 (5) SCC 139)
42
Supra note 19
43
(2010(42)PTC88(Del))

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PLEADINGS

In the light of the above cited case, it is concluded that none of the above stated elements can be
proved against XYZ Ltd. because the intention of starting the said advertisement campaign was
only to let the consumer make a choice and decide with his prudence between the two services
offered.
The Honble Supreme Court is requested not to adopt a hyper technical view and not to analyze
an advertisement like a statute or a clause of an agreement, as their intention was not to denigrate
the product or the brand of ABC Ltd.
It is further submitted that the whole purpose of the advertisement is to compete with a well
established company in the terms of letting the consumer know that XYZ Ltd, even though a
new company, can deliver better services than a company that has been in business for a period
of almost 3 decades44.
2.2 THAT THE BALANCE OF CONVENIENCE IS IN XYZ LTDS FAVOR
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 onesided affair45.
Balance of convenience means comparative mischief for inconvenience to the parties. The
inconvenience to the petitioner if temporary injunction is refused would be balanced and
compared with that of the opposite party, if it is granted46. 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.47
It is humbly submitted to the Honble Supreme Court that XYZ Ltd. being a newly incorporated
company is yet to establish itself firmly in the market48 and it would suffer more losses than
ABC Ltd. because by granting an interim injunction against the advertisement, the clientele,
44

P. 1, ph- 1, line 2 of the proposition

Bikash Chandra Deb V. Vijaya Minerals Pvt. Ltd, (2005 (1) CHN 582)
46
Antaryami Dalabehera V. Bishnu Charan Dalabehera, (2002 I OLR 531)
47
Anwar Elahi V. Vinod Misra and Anr. (1995 IVAD Delhi 576)
48
P. 1, ph- 2, line 4 of the proposition
45

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10

goodwill, reputation, market standing and brand equity of XYZ Ltd would suffer a major
setback.
2.3 THAT AN INJUNCTION CANNOT BE GRANTED WHEN AN EQUALLY EFFICACIOUS REMEDY IS
AVAILABLE- SECTION 41(H), SPECIFIC RELIEF ACT, 196349

Interim injunction is granted only when there are no other equally efficacious remedies
available50. The same has been held in a number of cases over the years.51
It is, thereby, humbly submitted that in the present case, injunction is not the only remedy
available. The petitioner can claim compensation by way of damages, if he is able to prove a
case for the same. ABC Ltds petition seeking an interim injunction should, hence, be dismissed
as the advertisement is merely a comparative ad and the irreparable losses suffered by XYZ Ltd.
tilts the Balance of Convenience in XYZ Ltds favor.

49

Section 41 (h) of the Specific Relief Act, 1963- Injunction when refused:
An injunction cannot be granted(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the
injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from
which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case
of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
50
ibid
51
Kasthuri V. Baskaran, ((2004) 1 MLJ 175); K. Thakshinamoorthy And Another V. State Bank Of India, Arasaradi,
(AIR 2001 Mad 167); Navalram Laxmidas Devmurari V. Vijayaben Jayvantbhai Chavda, (AIR 1998 Guj 17); K.S.
Balasubramaniam V. S. Munuswamy, (2000 (2) CTC 417)

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11

CONTENTION 3: THAT THE ALLEGATION THAT THE ADVERTISEMENT DRAWS

FROM MEGHNAS GOODWILL AND REPUTATION IS NOT TENABLE
It is humbly submitted before the Honble Supreme Court of India that Meghna has no right to
be a party to the proceedings as to be discussed in the following sub-contentions:
3.1 That Meghna has not been referred to in the advertisement
Furthermore, it is submitted to the Honble Court that even if a mention of Meghna was made in
the advertisement, she would still have no cause of action. The same has been dealt with in the
following two sub contentions:
3.2 That Meghna being barely a year old did not possess any goodwill that could have been
unfairly used by XYZ Ltd.
3.3 That Meghna is not being denigrated in the advertisement.

3.1 THAT MEGHNA HAS NOT BEEN REFERRED TO IN THE ADVERTISEMENT

It is humbly submitted to the Honble Supreme Court that the advertisement did make a mention
of the female singer52. The reference in ad was not towards Meghna. The statement was merely
made in order to give the consumers an option. No rational customer of either company would
draw any such conclusion from the advertisement as has been unjustifiably claimed by ABC Ltd.
Hence, it is most reverently submitted to the Honble Court that Meghna has no cause of action.
Her attempt at being a party to the proceedings is just an attempt to drag unnecessary attention. It
is further submitted to the Honble Court that even if a mention of Meghna was made she would
have no cause of action for:
Firstly, Meghna is barely a year old in the industry and cannot possibly possess any goodwill
which could have been unfairly used by XYZ Ltd.
Secondly, no denigration of Meghna has taken place in the advertisement.

3.2 THAT MEGHNA DID NOT POSSESS ANY GOODWILL THAT COULD HAVE BEEN UNFAIRLY USED
BY XYZ LTD.
52

P. 2, ph- 1, line1 of the proposition

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12

Goodwill has been elaborately defined in Trego V. Hunt53 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.
This has been relied upon by the Honble Supreme Court in the case of Commissioner of
Income-tax V. B. C. Srinivasa Setty54.
In a subsequent case reported in Inland Revenue Commissioners V. Muller & Co.s.Margarin,
Ltd.55, which was relied upon in the Supreme Court case of M/S. S. C. Cambatta & Co. Private
... V. The Commissioner Of Excess56, Lord Macnaghten made the following observations:
"What is goodwill? 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 the one thing which distinguishes an old-established business from
a new business at its first start.................. If there is one attribute common to all cases of
goodwill in it is the attribute.57
In the case of Seethalakshmi Ammal V. Controller of Estate Duly58, the following quoted
passage from this judgment considered what "goodwill" is:
"It is one of those terms which are better understood than comprehensively and clearly described.
Broadly speaking, it is the magnetic quality of a particular trade or business which attracts
custom to it as a matter of course. This quality springs from and is developed by various
contributing factors that earn a reputation for honest dealing, quality and standard. Goodwill is
founded on the belief and faith of the customer. It is commonly built up in relation to a particular
type of manufacture or production of articles identified by a trade mark which becomes widely
known to the public and by which the custom takes it for granted that it represents what they
wish for. No trade mark gains reputation overnight. Naturally the standing of the business is

53

(1896, App. case, 7)

([1981] 128 ITR 294 SC)
55
((1901) A.C. 217 (H.L.)).
56
(1961 SCR (2) 805)
57
((1) (1810) 17 Ves. 335. 346.)
58
([1966] 61 ITR 317, 331)
54

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13

necessarily one of the contributing factors. The personalities who are engaged in the business,
the location in which it is carried on and the like are other features which go into the goodwill.
Where a business involves no distinguishable features and deals in standard articles
manufactured by someone else which one can get from anywhere, not merely from a particular
dealer, there is hardly any possibility of there being a goodwill attached to such business."
In the context of the present case we draw the following conclusion from the above stated
judgments:
(i)

Goodwill is built up over the years of honest work: referring to the phrase years of
hard work59, Meghna has been into business for only a year60. A mere year is not
enough to build up goodwill in any form of business.

(ii)

Gained by lavish expenditure of money61: Lavish amount of money has not been
spent in the case at hand either. Only within a year, it is not possible for any
reasonable person or firm to be able to spend enough to have built up enough
goodwill to blame a well established firm to be taking advantage of their goodwill
which is yet to be established.

(iii)

It is the one thing which distinguishes an old-established business from a new

business at its first start62: This makes it even clearer that Meghna possesses no
goodwill. She is a new artist in the market63 and the fact that she has no goodwill is
what distinguishes her from the old artists.

(iv)

No trade mark gains reputation overnight64: It is unreasonable for Meghna to claim

any goodwill because she is yet to establish her career completely. She is yet to
gain popularity amongst the different groups in the society. It would be very

59

Supra note 53
P. 2, ph- 5, line 4 of the proposition
61
Supra note 53
62
Supra note 56
63
P. 1, ph- 6, line 5 of the proposition
64
Supra note 58
60

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14

perverse of her claim even the existence of goodwill in her name as it cannot be
built overnight.
It is, therefore, humbly submitted to the Honble Court that for XYZ Ltd. to be able to make
use of her goodwill, Meghna must possess some goodwill. Hence, XYZ Ltd. has not made any
use of her goodwill and couldnt have made it because Meghna by virtue of being new in the
music industry65 has not established her goodwill as a singer in the market/business.

3.3 THAT MEGHNA IS NOT BEING DENIGRATED IN THE ADVERTISEMENT

It is humbly submitted to the Honble Court that in the advertisement there is no reference to the
young singer66. And the literal meaning of the advertisement being that either believe the female
singer or compare the prices online stands true67. XYZ Ltd. has only tried to put forward that
their prices are cheaper, and the consumers can confirm the same by comparing them online.
Moreover, it is submitted to the court that if their brand ambassador was a male, he would
obviously be referred to as a male singer, so there is no question of denigrating women in the
advertisement.
INDECENT REPRESENTATION OF WOMEN'S ACT, 1986
In India, the legal provisions that regulate obscenity are Section 368 and 469 of the Indecent

65

ibid
Supra note 48
67
ibid
68
Section 3 of the Indecent Representation of Womens (Prohibition) 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
69
Section 4 of the Indecent Representation of Womens (Prohibition) Act, 1986- 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
66

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15

Representation of Women (Prohibition) Act, 1986 and Section 67 of the Information Technology
Act.70 The said Act prohibits advertisements containing indecent representation of women. 71 And
the publication or sending by post of books, pamphlets or in any form containing indecent
representation of women.72
The Hon'ble Supreme Court in the case of Dr. Ramesh Prabhu V. Prabhakar Kashinath
Kunte & Ors.73, 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 current standards of
behavior or propriety; avoidance of obscenity; and the requirements of correct behavior74.
Thus, the ordinary dictionary meaning of "decency" indicates that the action must be in
conformity with the current standards of behavior or propriety, etc. In Knuller (Publishing,
Printing and promotions) Ltd. V. Director of Public Prosecutions75 the meaning of
"indecency" was indicated as:.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.......

(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
70
Section 67 of the Information Technology Act- Publishing of information which is obscene in electronic form:
Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or
appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on
first conviction with imprisonment of either description for a term which may extend to five years and with fine
which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of
either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees
71
Supra note 68
72
Supra note 69
73
(A.I.R. 1996 S.C. 1113)
74
THE OXFORD ENCYCLOPEDIC ENGLISH DICTIONARY
75
((1972) 2 ALL ER 898)

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16

In the pertinent case, there is nothing in the advertisement that does not conform to the standards
set by the society. Mere statement that does not even refer to her but is a generic reference to all
the female singers of ABC Ltd. who have been their brand ambassadors does not amount to
denigration in this particular case. Furthermore, it contains nothing that should shock an ordinary
decent man or woman. 76
In the subsequent case, Deepa & Ors. V. S.I. Of Police & Anr.77, the Hon'ble Supreme Court
held that the test must obviously be of a general character but it must admit a just application
from case to case by indicating a line of demarcation not necessarily sharp but sufficiently
distinct to distinguish between that which is obscene and that which is not. It was pointed out
that none has so far attempted a definition of obscenity because the meaning can be laid bare
without attempting a definition by describing what must be looked for, however, to be stated that
at once that treating with sex and nudity in art and literature cannot be regarded as evidence of
obscenity without something more. The test of obscenity must square with the freedom of speech
and expression guaranteed under the Constitution. It was also pointed that Section 292 of Indian
Penal Code 78does not go beyond obscenity which falls directly within the words 'public decency

76

Supra note 48
(1986 CriLJ 1120)
78
Section 292 of the Indian Penal Code, 1860- 1[ Sale, etc., of obscene books, etc.- 2[(1) For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing, painting representation, figure or any other object, shall be
deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two
or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it.]
(2) 3[ ] Whoever(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire,
distribution, public exhibition or circulation, makes, reduces or has in his possession any obscene book, pamphlet,
paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to
believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into
circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that
any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported,
exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act
which is an offence under this section, or that any such obscene object can be procured from or through any person,
or
(e) offers or attempts to do any act which is an offence under this section, shall be punished 1[ on first conviction
with imprisonment of either description for a term which may extend to two years, and with fine which may extend
to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either
description for a term which may extend to five years, and also with fine which may extend to five thousand rupees].
2[ Exception- This section does not extend to77

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17

and morality' denoting the quality of being obscene which means offensive to modesty or
decency, lewd, filthy and repulsive.
In the case of Ranjit D. Udeshi V. State of Maharashtra79, it was observed that the word
"obscene" is not limited to writings, pictures etc. intended to arouse sexual desire. The test given
by Cockburn C.J., in Queen V. Hicklin80, to the effect that the tendency of the matter charged as
obscene must be to deprave and corrupt those, whose minds are open to such immoral influences
and into whose hands a publication of the sort may fall, so far followed in India, and is the right
test. The test does not offend Art. 19(1) (a) 81 of the Constitution
With reference to the above cases cited and in pursuance of the arguments advanced, it is
concluded that the extent of obscenity depends on the 'public decency and morality' denoting the
quality of being obscene which means offensive to modesty or decency, lewd, filthy and
repulsive. Also, that the tendency of the matter charged as obscene must be to deprave and
corrupt those, whose minds are open to such immoral influences and into whose hands a
publication of the sort may fall. We dont find any this but a mere pointer towards the singer
Meghna.
3.4 THAT XYZ LTD. FREEDOM OF SPEECH AND EXPRESSION
In the case of Dr. D.C. Saxena V. Hon'ble the Chief Justice of India82:Freedom of speech and expression would be subject to Article 1983 of the Constitution, in
relation to contempt of court, defamation or incitement to an offence etc. Article 384 read with

(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure(i) the publication of which is proved to be justified as being for the public good on the ground that such book,
pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or
learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains
Act, 1958 (24 of 1958 ), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]]
79
(1965 AIR 881 1965 SCR (1) 65)
80
((1868) L.R. 3 Q.B. 360)
81
Supra note 15
82
(AIR 1996 SC 2481)
83
Supra note 16

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18

Article 1985 of the Universal Declaration of Human Rights grants to everyone liberty and right to
freedom of opinion and expression. Article 1986 of the International Covenant on Civil and
Political Rights, 1966 to which India is a signatory and had ratified on 10th April 1979, provides
that everyone shall have the right to freedom of expression, to receive and impart information
and ideas of all kinds. It would, thus, be seen that liberty of speech and expression guaranteed by
Article 19(1)(a)87 is brought within its ambit.

As per Indian constitution commercial speech is treated as a part of freedom of speech and
expression guaranteed under Article 19 (1) (a)88 of constitution, judgment given by Supreme
Court of India in 1985 in the case of Tata Press V. Mahanagar telephone Nigam Ltd.89 The
Honble Supreme Court has further mentioned in its judgment :
Commercial speech has to be privileged and curtailed only to the extent it is reasonable for
protection of general interests. Court was of the view that publicity and advertisement of ones
product with purpose of boosting sales is a legitimate marketing strategy.
Therefore, it is most reverently submitted to the Honble Court that XYZ Ltd. did not make any
use of Meghnas goodwill for she doesnt have any in her name by virtue of being new in the
industry:
(i)

Did not denigrate the reputation of Meghna in any way.

84

Article 3 of Universal Declaration of Human Rights: Everyone has the right to life, liberty and security of person.
Article 19 of Universal Declaration of Human Rights: Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
86
Article 19 of the International Covenant on Civil and Political Rights:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law
and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public health or morals.
87
Supra note 16
88
ibid
89
Supra note 41
85

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(ii)

19

Let out the advertisement that very respectfully referred to the previous female brand
ambassadors of ABC Ltd. under the protection of the above discussed statutes.

Making a respectful submission it is humbly pleaded that Meghna at the outset never had a
reason to be impleaded in the proceedings for obtaining an injunction against the advertisement.
Therefore, in the light of the above arguments it is most reverently submitted to the Honble
Supreme Court that an interim injunction should not be granted against XYZ Ltds
advertisement.

MEMORIAL FOR THE RESPONDENT

xiii

PRAYER

PRAYER

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

humbly prayed before the Honble Supreme Court of India that it may be graciously
pleased to uphold the order of the High Court and the Division Bench and not grant
an interim injunction against the aforementioned advertisement.

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

SdCounsel for Respondent

MEMORIAL FOR THE RESPONDENT