UNIVERSITY OF MUMBAI LAW ACADEMY (UMLA) MOOT COURT, 2021

BEFORE THE HONOURABLE HIGH COURT OF DELTA

(ORIGINAL JURISDICTION)
___________________________________________________________________________

SUIT NO. __________ OF 2021

[Order 39 Rule, 2 of CPC]

IN THE MATTERS OF:

TAQATVAR …PLAINTIFF

V.

POWER INIDA PVT.LTD. …DEFENDANT

____________________________________________________________________________

SUBMISSION BEFORE

HONOURABLE JUSTICES

OF

THE HONOURABLE HIGHCOURT COURT OF DELTA

___________________________________________________________________________

MEMORIAL ON BEHALF OF THE PLAINTIFF

SUBMITTED BY-PRASHANS, ROLLNO-29

 TABLE OF CONTENTS

• LIST OF ABBREVIATIONS…………………………………………………………….i

• INDEX OF AUTHORITIES……………………………………………………………. ii

• STATEMENT OF JURISDICTION………………………………………………………iii

• STATEMENT OF FACTS…………………………………………………………………iv

• ISSUE RAISED……………………………………………………………………………v

• SUMMARY OF ARGUMENTS …………………………………………………………vi

• ARGUMENTS ADVANCED…………………………………………………………. 1 - 12

• PRAYER…………………………………………………………………………………. vii
 LIST OF ABBREVIATIONS

¶ Paragraph
§ Section
& And
AIR All India Reporter
Anr. Another
Art. Article
CPC Civil Procedure Code
HC High Court
IPR Intellectual Property Rights
NCT National Capital Territory
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Record
UOI Union Of India
v. Versus
§§ Sections
¶¶ Paragraphs
Ld. Learned
U/s Undersection
para Paragraph
 INDEX OF AUTHORITIES

Cases Cited Page

Nos.
Lakhanpal National Ltd. Vs. MRTP Commission & Anr. 10
Win Medicare Ltd. vs. Reckitt Benckiser India Limited, 2002 10
O2 Holdings Ltd.& Anr. v. Hutchison 3G UK Ltd 3
Janssen Pharmaceutica Pty. Ltd. v. Pfizer Pty. Ltd. 8

Indian Express Newspaper v. Union of India 12

Win Medicare Ltd. vs. Reckitt Benckiser India Limited2, 2002 (24) PTC 5
686 (MRTP)
Philips India Pvt. Ltd. vs. Shree Sant Kripa Appliances Pvt. Ltd. CS(OS) 12
No.1913/2014

STATUES REFERRED:
1. The Code of Civil Procedure
2. Trademark Act, 1999
3. Article 2(2) of the European Union Council Directive 84/450
4. Constitution of india

STATEMENT OF JURISDICTION

The Plaintiff has approached the Hon’ble High Court of Delta under Order 39 Rule
2 of Civil Procedure Code reads as hereunder:
_______________________________________________________________

Order-XXXIX, Rule-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.

STATEMENT OF FACTS
In November 2016, the defendant “Power India Private Limited” published ‘an
advertisement for its “IMMUNE SHAKTI” branded product in the newspaper Telegraph’.
The advertisement claimed that one cup of “IMMUNE SHAKTI” had the same amount of
protein as two cups of “TAQATVAR”. The plaintiff “TAQATVAR “was of the opinion that
the impugned advertisement infringed its registered Trademark. It said that by manipulating
the service size of both drinks in the comparison, it misleadingly stated that the amount of
protein in “IMMUNE SHAKTI” was double that of “TAQATVAR”.

The plaintiff “TAQATVAR” Limited filed a suit for an injunction seeking to restrain the
defendant “IMMUNE SHAKTI” from “communicating to the public or publishing the
impugned advertisement.”

The plaintiff claimed that the impugned advertisement infringed its registered Trademark
and wrongly stated that the protein in “IMMUNE SHAKTI” was double that of
“TAQATVAR”. It argued that in the advertisement, the “serving size of “IMMUNE
 SHAKTI” had been manipulated” and increased to make it appear that “IMMUNE
SHAKTI” had double the amount of protein as “TAQATVAR”. In the advertisement, the
serving size of “TAQATVAR” was taken as 27 grams whereas the serving size of the
“IMMUNE SHAKTI” was taken as 33 grams and this led to a misleading comparison.”
POWER INDIA” S claim that “IMMUNE SHAKTI” helps "2X increase" was an
"exaggeration".

The plaintiff further argued that the right to freedom of speech of the Constitution was “only
available to a citizen of India and not a corporate entity like the defendant.”

The defendant “POWER” INDIA PRIVATE LIMITED, at the outset, stated that it had
modified the advertisement to clarify that the comparison was based on the recommended
serving size of 33 grams and 27 grams for IMMUNE SHAKTI and TAQATVAR
respectively. It stated that the impugned advertisement was not “defamatory and provided an
accurate, true, and verifiable”. Further, it stated that “trade puffery, even if uncomfortable to
the registered proprietor of the trade mark, did not bring the advertisement within the scope
of the trade mark infringement.

The plaintiff stated that defendant’s products advertisement claim, “In a study, 9 out of 10
children’s diet was at risk of being deficient in essential nutrients”, was not substantiated
which is misleading by implication and exaggeration. The defendant’s product had faced
prosecution for making false claims that the product helps children grow twice as tall as they
would if they had any other another drink. They claim their products provide more stamina
and make children smarter. All these claims and quality of defendant’s product have also
been questioned by ASCI terming it “Misleading”.

The matter is pending before high Court with a view to decide upon injunction application
filed by the plaintiff and also this petition is posted for final arguments and for disposal.

ISSUE RAISED
___________________________________________________________________________

1. CAN ADVERTISEMENT / COMMERCIAL SPEECH BE INCLUDED UNDER THE

AMBIT OF THE CONSTITUTIONAL PROVISISONS OF ARTICLE 19 RIGHT OF
FREEDOM OF SPEECH AND EXPRESSION?

2. IS THE ACT OF DEFENDANT COVERED UNDER CONCEPT OF IMPUNGED

ADVERTISING OR COMPARATIVE ADVERTISING AND HOW IS IT JUSTIFIED
WITH ANY LEGAL PROVISIONS SUPPORTING THE SAME?
3. THE COURT HAD TO DECIDE WHETHER THE PLAINTIFF TRADEMARK
HAD BEEN INFRINGED AND WHETHER THE DEFENDANT SHOULD BE
RESTRAINED FROM PUBLISHING THE ADVERTISEMENT?

4. THE COURT HAD TO DECIDE WHETHER THE DEFENDANT AS A

CORPORATE ENTITY HAD A RIGHT TO FREEDOM OF SPEECH?

___________________________________________________________________________
MEMORIAL ON BEHALF OF THE PLAINTIFF
___________________________________________________________________________

SUMMARY OF ARGUMENTS

1. CAN ADVERTISEMENT / COMMERCIAL SPEECH BE INCLUDED UNDER

THE AMBIT OF THE CONSTITUTIONAL PROVISISONS OF ARTICLE 19
RIGHT OF FREEDOM OF SPEECH AND EXPRESSION?

Counsel humbly submits that an advertisement/commercial speech will not come

under the ambit of the Ambit of The Constitutional Provisions of Article 19 Right of

Freedom of Speech and Expression. When it takes the form of a commercial

advertisement which has an element of trade or commerce it no longer falls within the

concept of freedom of speech and expression under article 19 of Indian constitution

for the object is not propagation of ideas ' social, political or economic or furtherance

of literature or human thought; but as in the present case the commendation of the

efficacy, value and importance in treatment of particular diseases by certain drugs and
medicines. In such a case, advertisement is a part of business.

2. IS THE ACT OF DEFENDANT COVERED UNDER CONCEPT OF

IMPUNGED ADVERTISING OR COMPARATIVE ADVERTISING AND HOW
IS IT JUSTIFIED WITH ANY LEGAL PROVISIONS SUPPORTING THE
SAME?

Counsel humbly submits that the act done by the defendant has all the evidences to

be categorized as a misleading advertisement neglecting all scientific facts which

mere purpose seems to deceive and manipulate consumers. These advertisements

can cause serious damage to the consumers, and damage a healthy corporate

environment well and hence are required to be restrained. The courts, while deciding

various cases, have tried to strike a balance between protecting the right to

commercial speech and the interest of consumers and competitors.

3. THE COURT HAD TO DECIDE WHETHER THE PLAINTIFF TRADEMARK

HAD BEEN INFRINGED AND WHETHER THE DEFENDANT SHOULD BE
RESTRAINED FROM PUBLISHING THE ADVERTISEMENT?

The Petitioner stated that the advertisement as a whole was disparaging and

denigrating in nature. The advertisement maliciously published by the defendant in

the newspaper Telegraph in respect of the plaintiffs “TAQATVAR” product which

consist of protein drink, which were false and which have not only denigrated the

Petitioner’s product but also caused and likely to further cause special damage to the

Petitioners reputation.

4. THE COURT HAD TO DECIDE WHETHER THE DEFENDANT AS A

CORPORATE ENTITY HAD A RIGHT TO FREEDOM OF SPEECH?
Dr. Ambedkar's draft of constitution proposed that "no law shall be made abridging

the freedom of speech, of the press, of association, and of assembly, except for

considerations of public order and morality”.

Art. 19 deals with fundamental rights of "citizens" and supreme Court in various

cases held that commercial speech is protected under the ambit of free speech and

expression under Article 19

ARGUMENTS ADVANCED

1. CAN ADVERTISEMENT / COMMERCIAL SPEECH BE INCLUDED UNDER

THE AMBIT OF THE CONSTITUTIONAL PROVISISONS OF ARTICLE 19
RIGHT OF FREEDOM OF SPEECH AND EXPRESSION?

> In Indian Express Newspaper v. Union of India[1] that the Supreme Court held
that commercial speech is protected under the ambit of free speech and expression
under Article 19 and the Supreme Court observed that “We are of the view that all
commercial advertisements cannot be denied the protection of Article 19(1)(a) of the
Constitution merely because they are issued by businessmen and its true character is
detected by the object for the promotion of which it is employed.”
Here counsel would like to request court on words used by supreme court while
commenting on commercial advertising under article 19 of Indian constitution and
specially on words “character of business detected by object of promotion” and here
its very clear that by promoting false facts and data defendant not only tried to
mislead consumers but also harming the honest and healthy business environment.
> So, counsel would like to humbly request to the court to see this matter in light of
essence article 19 of Indian constitution and in the light of comments made by
supreme court for businesses under article 19 of Indian constitution

2. IS THE ACT OF DEFENDANT COVERED UNDER CONCEPT OF IMPUNGED

ADVERTISING OR COMPARATIVE ADVERTISING AND HOW IS IT
JUSTIFIED WITH ANY LEGAL PROVISIONS SUPPORTING THE SAME?

The judiciary’s oft-cited concern through the catena of judgments has been the
prevention of misleading of the public. It is worth noting in this regard, that there are
already laws available against advertisements that mislead the public. Illustratively,
the Trade Mark Act, 1999 empowers the authorities to take action for false trade
descriptions and makes it a punishable offence. Sections 101-104 provide remedies
for falsification of trademark, selling false trademark and descriptions. Similarly, the
Competition Act, 2002 (object clause) aims to “prevent practices having an adverse
effect on competition, to promote, and sustain competition in markets, to protect the
interests of consumers and to ensure freedom of trade carried on by other
participants in markets, in India.”
Supreme Court‟s decision in Lakhanpal National Ltd. Vs. MRTP Commission &
Anr., (1989) 3 SCC 2512 wherein it has been held as under:-
.The object is to bring honesty and truth in the relationship between the
manufacturer and the consumer. When a problem arises as to whether a particular
act can be condemned as an unfair trade practice or not, the key to the solution
would be to examine whether it contains a false statement and is misleading and
further what is the effect of such a representation made by the manufacturer on the
common man? Does it lead a reasonable person in the position of a buyer to a wrong
conclusion? The issue cannot be resolved by merely examining whether the
representation is correct or incorrect in the literal sense. A representation containing
 a statement apparently correct in the technical sense may have the effect of
misleading the buyer by using tricky language......."1
Win Medicare Ltd. vs. Reckitt Benckiser India Limited2, 2002 (24) PTC 686
(MRTP) wherein it has been held as under:-
A close look at the impugned advertisement reveals that the main message is
conveyed to the readers through the medium of symbols namely, the tick-mark ( ),
the cross (x) and the dash (-). At the bottom of the table, it is explained that tick-
mark stands for 'successful', cross stands for 'failed' and dash for 'not tested'. There is
no denying the fact that whereas the main body of the advertisement is in bold print,
the footnote at the bottom of the table is in very small print. Further, it is also
common knowledge that in a tabular representation, the reader generally forms his
first impression by the symbols used in the table without rushing to their
explanations given elsewhere. The three and the highest number of tick-marks
awarded to Dettol on the face of it, show that in respect of the various parameters
used to demonstrate the efficacy of the products tested, Dettol is superior to
Betadine. Further, the impugned advertisement also suffers from concealment of a
vital fact that Betadine is a Standardised Solution whereas Dettol is sold in
concentrated form. We also cannot ignore the fact that out of the four parameters
used, Betadine has been tested only for one and, therefore, truly speaking the two are
incomparable till Betadine is also tested for the remaining three parameters.
Philips India Pvt. Ltd. vs. Shree Sant Kripa Appliances Pvt. Ltd. CS(OS)
No.1913/2014 wherein it has been held as under:-
For an action of malicious falsehood to succeed, the plaintiff is required to plead and
prove the following:
The plaintiff has suffered special damage by virtue of the impugned
statement/representation. In common law, pleading and proving special damages is
essential for institution of an action of malicious falsehood. There are, however,
some jurisdictions where, by statute it is not necessary to allege or prove special
damage in certain cases.......
Insofar as special damage is concerned, it could be established by pleading and
proving a general decline in business evidenced by record maintained in the usual

1
Indian Express Newspaper v. Union of India
2 Lakhanpal National Ltd. Vs. MRTP Commission & Anr.
and normal course of business. Decline in business should be attributable to the
impugned representations and not on account of general economic regression in the
concerned industry or otherwise.
Philips India Pvt. Ltd. vs. Shree Sant Kripa Appliances Pvt. Ltd. CS(OS)
4
No.1913/2014 wherein it has been held as under:-
For an action of malicious falsehood to succeed, the plaintiff is required to plead and
prove the following:
The plaintiff has suffered special damage by virtue of the impugned
statement/representation. In common law, pleading and proving special damages is
essential for institution of an action of malicious falsehood. There are, however,
some jurisdictions where, by statute it is not necessary to allege or prove special
damage in certain cases.......
Insofar as special damage is concerned, it could be established by pleading and
proving a general decline in business evidenced by record maintained in the usual
and normal course of business. Decline in business should be attributable to the
impugned representations and not on account of general economic regression in the
concerned industry or otherwise.
COMPETITORS CAN CERTAINLY COMPARE BUT CANNOT MISLEAD
The purpose of the provisions in the Act, 1999 and the ASCI Code which lists the
conditions under which comparative advertising is permitted is to stimulate
competition between suppliers of goods and services to the consumer‟s advantage,
by allowing competitors to highlight objectively the merits of the various
comparative products while, at the same time, prohibiting practices which may
distort competition, be detrimental to competitors and have an adverse effect on
consumer choice.
It humbly submitted that contention raised by the Defendant allegedly claimed that
in the advertisement said that one cup of “IMMUNE SHAKTI” had the same
amount of protein as two cups of “TAQATVAR”. The Defendant fails to compare
the equal quantity of the product with the Plaintiffs product , which was in the
advertisement, the serving size of “TAQATVAR” was taken as 27 grams whereas
the serving size of the “IMMUNE SHAKTI” was taken as 33 grams and this led to
a misle ading comparison and also there has been no disclaimer provided in the
advertisement.

Advertisement by defendant clearly states his competitor are inferior, In case he

makes any such statement it would be an act constituting product disparagement.
Comparative advertising is often supported on the basis of the argument that
advertising is commercial speech and is therefore protected by Article 19(1)(a) of
the Constitution, however, freedom of speech and expression does not permit
defamation.
In the case of Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr 3.
1999 (19) PTC 741. This case dealt with attribute of puffery which is a common part
of comparative advertisements nowadays. The case was between the two
manufacturers of clothing detergents namely “Robin Blue” and “Ujala” as the
plaintiff and the defendant respectively. The plaintiff contended that the defendant
used the same bottle of the same color and used their bottle in their advertisement
and mentioned that the plaintiff‟s product is inefficient and uneconomical. The court
defined the meaning of infringement of trademark by disparagement and held that
no one shall advertise about their product by making the product of other company
inferior or deceptive or disparaged. Thus the court held that for the trademark
infringement there are basically three parameters viz. 1. Whether it contains any
false statement about the product or not? 2. Whether it is misleading or not? And 3.
Whether there is any effect on the sales of the product to the end use

___________________________________________________________________
1. Lakhanpal National Ltd. Vs. MRTP Commission & Anr., (1989) 3 SCC
2. Win Medicare Ltd. vs. Reckitt Benckiser India Limited, 2002
3. Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr
4. Philips India Pvt. Ltd. vs. Shree Sant Kripa Appliances Pvt. Ltd.
5. Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr

3. THE COURT HAD TO DECIDE WHETHER THE PLAINTIFF

TRADEMARK HAD BEEN INFRINGED AND WHETHER THE
DEFENDANT SHOULD BE RESTRAINED FROM PUBLISHING THE
ADVERTISEMENT?

OBJECTIVE OF SECTIONS 29(8) AND 30(1) OF THE ACT, 1999, IS TO

ALLOW HONEST COMPARATIVE ADVERTISING

The primary objective of Sections 29(8) and 30(1) of the Act, 1999, is to allow
comparative advertising as long as the use of a competitor’s mark is honest. The test
of honest use is an objective test which depends on whether the use is considered
honest by members of a reasonable audience.

The words "industrial or commercial matters" in the aforesaid Sections do not mean
that the court should look at statutory or industry-agreed codes of conduct. Further,
the nature of the products or services no doubt would affect the degree of hyperbole
acceptable. Honesty has to be gauged against what is reasonably expected by the
relevant public of advertisements for the goods or services in issue. After all what is
tolerable in advertisements for second-hand cars may well not be thought honest if
used to encourage the use of powerful medicines. The nature of the goods or services
may therefore affect the reasonable perception of what advertising is honest.
FAILURE TO POINT OUT A COMPETITOR‟S ADVANTAGES IS NOT
NECESSARILY DISHONEST
Failure to point out a competitor’s advantages is not necessarily dishonest.
However, care must be taken in ensuring that statements of comparison with the
competitors‟ products are not defamatory or libelous or confusing or misleading. In
a recent decision of R (Sainsbury's Supermarkets Limited) v. The Independent
Reviewer of Advertising Standards Authority Adjudications v. Advertising Standards
Authority Limited, Tesco Stores Limited, CO/17656/20136, the High Court of Justice
Queens Division Bench Division Administrative Court of the UK upheld the
decisions of Independent Reviewer of Advertising Standards Authority
Adjudications (IR) and of the Council of the Advertising Standards Authority
(ASA)7 and held there was no flaw in the advertising campaign involving price
comparison carried on by Tesco Stores. In the complaint before the ASA, one of the
contentions advanced by Sainsbury was that non-price elements, relating to product
quality, corporate responsibility, sustainability and other ethical matters, had not
been factored in by Tesco in their product comparison and that Tesco had failed
properly to weigh the non-price elements. Sainsbury also contended that higher cost
of the product was worth paying as its products were certifiably superior in the
aforementioned categories. Sainsbury’s argument before all three forums was that
considering these non-price elements would render the "sufficiently interchangeable"
test as not satisfied and thus, Tesco could not have compared the products. The ASA
had concluded, "The Code allowed advertisers to objectively compare one or more
material, relevant, verifiable and representative feature of products which could
include price. We considered that Tesco had objectively compared price and the ad
made clear that Tesco were comparing their own prices against brands, own labels,
and fresh produce prices at "Sainsbury’s, Asda, and Morrisons and that some
products would be excluded from the comparison. While we noted Sainsbury’s
concerns, in the context of an ad which explained clearly the basis of Tesco’s pricing
comparison we concluded the claim "You won’t lose out on big brands, own label or
fresh food" had been substantiated and was not misleading. In addition, we
concluded the basis of the comparison was clear and did not breach the Code."
In Indian law similarly, there is no rule which requires that all the features of a
product have to be necessarily compared in an advertisement. But to be fair counsel
would like to submit the adverstisement having clear element of malice against
plaintiff must be stopped.

Consequently, the test of comparative advertising applied in Janssen Pharmaceutica

Pty. Ltd. v. Pfizer Pty. Ltd. (supra)8 is inapplicable to the present case. Further, in
Janssen Pharmaceutica Pty. Ltd. v. Pfizer Pty. Ltd. (supra) the Court after recording
the entire evidence concluded that the claim in the said advertisement was false.

The counsel humbly submits that the primary purpose of a trademark is to

‘distinguish the goods of one person from another’ therefore a trademark enables a
consumer to identify the goods and their origin. Hence in this present case, an
advertiser uses a competitor’s 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.

The law on comparative advertising and product disparagement, in relation to

trademarks, in India, is based upon the law as laid down in Irving's Yeast Vite Ltd v
FA Horse-nail5. Section 29(8) of The Trademarks Act, 1999 enunciates situations,
when the use of a trademark in advertising can constitute infringement. It says that
any advertising which is not in accordance with honest practices; or is detrimental to
the distinctive character, or to the repute of the mark, shall be an act constituting
infringement.

Settled law on trademark infringement and Comparative Advertisement in

India-
Trademark Act, 1999 permits comparative advertising u/s 30(1) which reads as:
Nothing in section 29 shall be preventing the use of registered trademark by any
person with the purposes of identifying goods or services as those of the proprietor
provided the use:-
a) is in accordance with the 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.

Further it humbly submitted that in study, 9 out of 10 children’s diet was at risk of
being deficient in essential nutrients”, was not substantiated which is misleading by
implication and exaggeration. The defendant’s product had faced prosecution for
making false claims that the product helps children grown twice as tall as they would
if they had any other drink. They claim their product provide more stamina and make
children smarter.
CIVIL REMEDIES
Relief in suits for infringement or for passing off.— (1) The relief which a court
may grant in any suit for infringement or for passing off referred to in section 134
includes injunction (subject to such terms, if any, as the court thinks fit) and at the
option of the plaintiff, either damages or an account of profits, together with or
without any order for the delivery-up of the infringing labels and marks for
destruction or erasure.10 Therefore the court may grant the injunctions as a civil
remedy to refrain the other party or to prohibit the actions of the other party. Other
than injunctions court may allow damages or accounts of profits to the plaintiff.

In this present case thereby direct reference to the product of the Plaintiff i.e.
TAQATVAR has been seen and that ground Defendant is liable to restrain from
communicating to the public or publishing the impugned advertisement. Hence It is
humbly submitted that the defendant is used the Trademark of Plaintiff and the same
has been infringed by defendant for publishing misleading advertisement in the
Newspaper, Telegraph. Which definitely cause the damage to the Plaintiffs product
as well the reputation of the Plaintiff Company.
____________________________________________________________________
6. R (Sainsbury's Supermarkets Limited) v. The Independent Reviewer of Advertising Standards
Authority Adjudications v. Advertising Standards Authority Limited, Tesco Stores Limited,
CO/17656/2013
7 Wander Ltd. and Anr. v. Antox India P. Ltd., 1990, Supp. SCC 727
8 Janssen Pharmaceutica Pty. Ltd. v. Pfizer Pty. Ltd.
10 Council of the Advertising Standards Authority (ASA) UK

4. THE COURT HAD TO DECIDE WHETHER THE DEFENDANT AS A

CORPORATE ENTITY HAD A RIGHT TO FREEDOM OF SPEECH?

The counsel submits that the Defendant as a corporate entity does not have right to
freedom of speech. Art. 19 deals with fundamental rights of "citizens" as described
in Part II of the Constitution. Which guarantee certain rights to "all persons" and the
other provisions of the same part of the Constitution relating to fundamental rights
available to ’citizens’ only, and, therefore, it is not necessary to recount all those
provisions. It is enough to say that the makers of the -Constitution were fully alive to
the distinction between the expressions "any person" and "any citizen", and when
the Constitution laid down the freedoms contained in Art. 19(1)(a)-(g), as available
to "all citizens", it deliberately kept out all noncitizens. In that context, non-citizens
would include aliens and artificial persons. Hence in this present case the Defendant
as a corporate entity comes under the non-citizens.

Further counsel submits that Part II of the Constitution relating to ‘citizenship’ is

clearly inapplicable to juristic persons and the provisions of the Citizenship Act,
1955, enacted by Parliament under Art. 11 of the Constitution show that such
persons are outside the purview of the Act. It cannot therefore, be said that either
Part II of the Constitution or the Citizenship Act, 1955, confers the right of
citizenship or recognises as citizen any person other than a natural person. They do
not contemplate a corporation as a citizen.
Counsel would like to cite the most important case on the issue of the corporate
entity, in Chiranjit Lal Chowdhury v. Union of India 11, [1950] S.C.R. 869, held that
the precedents of the Supreme Court of the United States which hold that
corporations are citizens of the State of incorporation for purposes of federal
jurisdiction cannot be followed in India. The diversity of citizenship which has led to
such rulings does not exist in India. As a corporation is a separate entity from its
members, it is not possible to pierce the veil of incorporation to determine the
citizenship of its members in order to give the corporation the benefit of Art. 19.

Similarly in view in the State Trading Corporation of India Limited and Ors. v. The
12
Commercial Tax Officer, Visakhapatnam and Ors , court held that it is not,
therefore, a citizen either by itself or as the aggregate of Indian citizens. Its Indian
nationality is not to be confused with citizenship of natural persons and the word
‘citizen’ in Art’ 19(1) (f) and (g) can refer to no other than natural persons.

Hence in this present case is it has been clearly seen that the Defendant i.e. “Power
India Private Limited” is the corporate entity and does not have the right to freedom
of speech.
 PRAYER

In the light of arguments advanced and authorities cited, the Petitioner humbly
submits that the Hon’ble Supreme Court may be pleased to adjudge and declare that:

A) The Defendant, be restrained by an ex-parte ad- interim and interim injunction

from:

Issuing or otherwise howsoever, communicating to the public or publishing the

Impugned advertisement or any part thereof or any other advertisement of a similar
nature in any language or in any manner causing the Impugned advertisement or any
part thereof or any other advertisement of a similar nature to be published or
broadcast or communicated to the public or published in any media including
digital/electronic or social media or in any other manner disparaging the goodwill
and reputation of the Plaintiffs and their products sold under the trade mark
TAQATVAR;
Any other order as the Hon’ble Court deems fit in the interest of equity, justice and
good conscience.

All of which is humbly prayed.

Sd/-

(Counsels for the Plaintiff)

Date:
Place: