SCHOOL OF EXCELLENCE IN LAW

NAME : VISHAKA Y

REG.NO : HC18146

COURSE : B.B.A, LL.B. (HONS)

YEAR : V

SECTION : C

SUBJECT : MOOT COURT

STUDENT SIGN FACULTY SIGN

 MOOT PROBLEM NO. 4

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL

FORUM, MUMBAI

CONSUMER COMPLAINT NO. OF 2022

(ARISING OUT OF JURISDICTION U/S 35 OF THE CONSUMER PROTECTION
ACT, 2019)

IN THE MATTER OF:

HEALTHY BODY LTD. COMPLAINANT

VERSUS

BODY WELLNESS PRODUCTS LTD. OPPOSITE PARTY

MOST RESPECTFULLY SUBMITTED TO THE HON’BE JUDGES OF THE

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MUMBAI

MEMORIAL ON BEHALF OF THE OPPOSITE PARTY

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 TABLE OF CONTENTS

S.NO PARTICULARS PAGE

NUMBER

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 5

4. STATEMENT OF FACTS 6

5. ISSUES RAISED 7

6. SUMMARY OF ARGUMENTS 7

7. ARGUMENTS ADVANCED 8

WHETHER TVC VIOLATES THE ARTICLE 19?

8. PRAYER 13

9. BIBLIOGRAPHY 14

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 LIST OF
ABBREVIATION
TVC Television Commercial S
Hon’ble Honorable
District District Consumer Disputes Redressal Forum
Forum
Ltd Limited
& And
u/s Under section
CPA Consumer Protection Act,2019
Anr Another
SC Supreme Court of India
Pvt. Private
AIR All India Reporter
CCPA Central Consumer Protection Authority
Govt. Government
Ors. Others

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 INDEX OF AUTHORITIES

STATUTES
1. The Consumer Protection Act, 2019
2. Guidelines for Prevention of Misleading Advertisements and Endorsements for
Misleading Advertisements of 2022.

CASES REFERRED
1) Romesh thappar v. state of Madras
2) Indian Express Newspaper v. Union of India
3) Tata Press Ltd v. Mahanagar Telephone Nigam Ltd
4) Havells India Ltd.v. Aritanshu Khaitan
5) Havells India Ltd.v. Aritanshu Khaitan

BOOKS REFERRED
1. Consumer protection – Law and Practice (5th Ed.) by Avtar Singh
2. Consumer protection – Law and Practice (2008) by N.K.Jain
LEXICONS
1. Brayan A. Garner, Black’s law dictionary (9th ed. Thomson West, 2009).
2. The International Webster’s New Universal Dictionary (2nd ed. Trident Press
International, USA, 1983).
3. P. Ramnatha Iyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2010).
4. Aiyar, P. Ramanathan, The Law Lexicon, (2nd ed. 2006).
5. Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.),
Sweet and Maxwell, Vol. 4.
6. Oxford Advanced Learners Dictionary, (7th ed., 2008).

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 STATEMENT OF JURISDICTION

The complainant has approached this Hon’ble District Consumer Disputes Redressal Forum
under Section 351 of the Consumer Protection Act, 2019 which reads as follows-

STATEMENT OF FACTS

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“35. (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any
service provided or agreed to be provided, may be filed with a District Commission by—

(a) the consumer, — (i) to whom such goods are sold or delivered or agreed to be sold or delivered or such
service is provided or agreed to be provided; or (ii) who alleges unfair trade practice in respect of such goods
or service;

(b) any recognised consumer association, whether the consumer to whom such goods are sold or delivered or
agreed to be sold or delivered or such service is provided or agreed to be provided, or who alleges unfair trade
practice in respect of such goods or service, is a member of such association or not;

(c) one or more consumers, where there are numerous consumers having the same interest, with the permission
of the District Commission, on behalf of, or for the benefit of, all consumers so interested; or

(d) the Central Government, the Central Authority or the State Government, as the case may be: Provided that
the complaint under this sub-section may be filed electronically in such manner as may be prescribed.

Explanation. —For the purposes of this sub-section, "recognised consumer association" means any voluntary
consumer association registered under any law for the time being in force.

(2) Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such
manner, including electronic form, as may be prescribed.”

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1. ‘Healthy Body’ by Healthy Products Ltd. is one of the well-reputed brands available in the
health food drinks market in India. It makes several health & nutritional claims targeted at
children audience.

2. ‘Swasth’ is another powdered milk energy drink brand available in the Indian market,
owned by Body Wellness Products Ltd.

3. In mid-2020, ‘Swasth’ aired an advertisement (TVC) declaring that ‘one cup’ of their
product is equivalent to ‘two cups’ of Healthy Body, thereby providing the same amount of
protein content in one cup of Swasth itself.

4. Healthy Body argues that the said TVC generates incertitude & perplexity in the minds of
the consumers by giving a fallacious implication of their product to the consumers, thereby
resulting in undue influence upon them.

5. In light of the above-mentioned facts and circumstances, Healthy Body has filed a suit
before this Hon’ble District Consumer Dispute Redressal Forum, Mumbai.

ISSUES RAISED
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ISSUE 1. WHETHER TVC VIOLATES THE ARTICLE 19?

SUMMARY OF ARGUMENTS

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1.Can this advertisement be protected under article 19(1)(a) of the Indian constitution as a
form of speech?

It is humbly submitted before this Tribunal that the advertisement is a facet of commercial
speech which is protected under 19(1)(a) of the Constitution. The same can be restricted only
in accordance with law enacted under 19(2) of the Constitution. In a democratic country, free
flow of commercial information is indispensable and the public has a right to receive the
commercial speech. In fact, the protection given to an advertisement under the Constitution is
a necessary concomitant of the right of the public to receive the information in the
advertisement. Such an advertisement of the respondent can surely be protected under article
19 (1)(a) of constitution

Advertisements are one of the most important sources of creating awareness about various
products. We may have shifted our reliance from advertisements in print media and
televisions to advertisements on social media, however, advertisements continue to remain
the largest creator of demand among consumers. While attempting to do so, corporate often
tend to promote their brand as being superior to their competitor’s.

ARGUMENTS ADVANCED

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Article 19 and commercial speech-

Article 19(1)(a) of the constitution guarantees the right to freedom of speech and expression
to all citizens of India, and the essential corollary to the same is the right to be informed and
access to information. Romesh thappar v. state of Madras2 , the Supreme court held that
Article 19(1)(a) includes the freedom of press, however it was in Indian Express
Newspaper v. Union of India3 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 “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”.

The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone
Nigam Ltd 4 wherein the Supreme court observed the right of the consumer as a recipient of
commercial speech by stating, “An advertisement giving information regarding a life-saving
drug may be of much more important to be general public than to the advertiser who may be
having purely a trade consideration. Article (19)(a) not only guarantees freedom of speech
and expression, it also protects the rights of individuals to listen, read and receive the said
speech”. Further, the Supreme Court also held that misleading and deceptive advertising
would not fall within the protection of Article 19.

The object of advertisement 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 false statement and is misleading and further what is the effect of such a
representation made by the manufacturer on the lay man? By such means also the
respondent’s advertisement is no way illegal.

2
1950 SCR 594
3
(1985) 1 SCC 641

4
(1995) 5 SCC 139

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Misleading advertisement

The respondent contend that the advertisement was not misleading as the information
provided was accurate and was subject to the recommended serving size of both the drinks.

Whether the ad amounts to comparative advertisement?

The advertisement was merely a form of comparative advertising did not violate the
plaintiff’s trademark as it did not distort competition or mislead the consumer.

While analyzing mislead advertisement- two essential elements should be satisfied to call an
advertisement misleading

1. The misleading advertisement should deceive the person it is intended for

2. Such advertisement is incapable of influencing the economic behavior of the persons

it is intended for or harm a competitor

The defendant argued that the advertisement was one that permitted by section 28 section 30
of the Trade Marks Act, 1999.further, it stated that “trade puffery, even if uncomfortable to
the registered proprietor of the trademark, did not bring the advertisement within the scope of
the trademark infringement and relied on Havells India Ltd.v. Aritanshu Khaitan which in
judgment said that in comparative advertising a certain amount of disparagement is implicit,
yet the same is legal and permissible as long as it does not mislead.

In Codex General Guidelines on Claims state that the comparative claims must be made
taking into taking preparation required for consumption according to the instruction for use
on the label. As both the parties recommend ‘per serving’ size on their labels as a method of
preparation before consumption. ‘per serving’ is the only basis on which a comparison can be
made. This necessarily does not prevents the advertisement from being protected under
Article 19(1)(a).

The advertiser can compare two or more material, relevant, verifiable, and other feature of
the goods and services in question which may include price and other factors. Comparative

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advertising is permissible and it also legal as it is in the interest of competition and public
enlightenment.

Further in the case of Colgate Palmolive Company&Anr.Hindustan Uniliver Ltd 2014

(57)PTC 47 it was held that the comparison which is unfavorable to the competitor does not
necessarily mean that it is dishonest or unduly detrimental. Not all such advertisement fall out
of ambit of Article 19(1)(a). In comparative advertising, a certain amount of disparagement is
implicit and as long as the advertisement is limited only to puffing, there can be no actionable
claim against the same.

The defendant contends that an overall impression of the impugned advertisement is required
to be seen. The intent and effect of the impugned advertisement being to educate the
consumers , the impugned advertisement is neither misleading nor disparaging nor
defamatory and is factually correct.To decide whether An advertisement is disparaging , the
court has to consider

1. The intent of the commercial advertisement

2. The message sought to be conveyed

3. The mode and manner of conveying the message

Condemning the goods and services of a competitor or ridiculing the same or showing the
same as substandard would amount to disparagement.

Of course, as stated above, mere puffing up to one’s products or services in comparison to

those of others WOULD NOT CONSTITUTE DISPARAGEMENT.

It may be permissible for an advertiser to compare the technology or the formula of the
products of others in an attempt to impress upon viewers the superiority of the goods and
articles advertised over those of others. In the process, an advertiser may even brand the
technology and or formula applied by others as obsolete compared to the modern technology
or formula of the advertiser.

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Thus it is humbly submitted by the defendant that this advertisement includes comparative
advertisement which is done with professional ethics and also legal and not misleading one
and has the right to be protected under Article 19(1)(a) of the Indian Constitution.

PRAYER

THEREFORE, in the lights of the facts used, issued raised, arguments advanced & authorities
cited, it is most humbly and respectfully prayed that the State Consumer Disputes Redressal
Tribunal may be pleased to adjudges and declare that:

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1. The suit shall be dismissed

2. The advertisement is valid and can be protected under Article 19 (1)(a) of the Indian
Constitution.

s/d
COUNSEL OF RESPONDENTS

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