CHANAKAYA NATIONAL LAW UNIVERSITY,

MITHAPUR, PATNA-80001

SUBJECT: LAW OF TORTS AND CONSUMER

PROTECTION

TOPIC: TORT OF MALICIOUS FALSEHOOD

SUBMITTED TO:
Mrs. SUSHMITA SINGH
FACULTY OF LAW

SUBMITTED BY:
VISHWAN UPADHYAY
ROLL NO.: 1864
BBA L.L.B

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 CHANAKAYA NATIONAL LAW UNIVERSITY,
MITHAPUR, PATNA-80001
1ST YEAR
ACKNOWLEDGEMENT

I would like to thank my faculty Mrs. Sushmita Singh whose guidance

helped me a lot with structuring my project.

I owe my present accomplishment of my project to my friends, who

helped me immensely with materials throughout the project and without
whom I couldnt have completed it in the present way.

I would also like to extend my gratitude to my parents and to all those

unseen extending hands that helped me out at every stage of my project.

THANK YOU
NAME: VISHWAN UPADHYAY
ROLL NO: 1864
SEMESTER- 1ST

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MITHAPUR, PATNA-80001

TABLE OF CONTENTS

1. INTRODUCTION
2. ESSENTIALS OF TORT OF MALICIOUS FALSEHOOD
3. SLANDER OF TITLE OR SLANDER OF GOODS
a. POINTS TO BE PROVED IN AN ACTION FOR SLANDER OF
GOODS OR TITLE
b. REMEDIES
4. PASSING OFF GOODS
a. POINTS TO BE PROVED IN PASSING OFF GOODS
5. IMITATION OF THE NAME OF ANOTHERS BUISNESS
a. REMEDIES
6. OTHER FORMS OF MALICIOUS FALSEHOOD
7. CONCLUSION
8. BIBLIOGRAPHY

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INTRODUCTION

Malicious falsehood consists in making malicious statements concerning the plaintiff

to some third person adversely affecting the pecuniary interest of the plaintiff. This
wrong is similar to defamation because in this case, as in defamation, a statement
made to third person, causes damage to the plaintiff. However the two wrongs are
much different. In defamation the reputation of plaintiff is affected and in malicious
falsehood, the pecuniary interest of plaintiff is affected. Moreover in the case of
defamation, malice in the sense of an evil motive is not necessary. An evil motive is
one of the important essential ingredients of the wrong of malicious falsehood.
Malicious falsehood has a common point with the wrong of deceit that false statement
made by the defendant causes loss to the plaintiff. But the difference is that in the
wrong of deceit, the statement is made to the plaintiff himself and thus he suffers by
acting upon it and in the case of malicious falsehood, the false statement is made to
the third party in a way that proves injurious to the plaintiffs pecuniary interest. A
malicious statement by the defendant that the plaintiffs business has been closed
down would result in pecuniary loss to the plaintiff because the natural consequence
of that is the loss of his customers. It is the malicious falsehood for which the
defendant would be liable.1 The defamation act, 1952(English) makes it unnecessary
to prove special damages in case of malicious falsehood:
(a) If the words upon which action is founded are calculated to cause pecuniary
loss to the plaintiff and are published in writing or other permanent form, or
(b) If the said words are calculated to cause the plaintiff pecuniary damage in
respect of any, office, profession, calling, trade or business held or carried on
by him at the time of publication.2

11. Ractliffe vs. Evans, 1892

22. Section 3(1)

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Important form of this wrong are slander of title and slander of goods. In the
wrong of slander of title, there is a malicious statement about a persons property or
business and does not relate necessarily to his personal reputation, but to his title to
property or his
business or generally to his material interest.3 For example, a false assertion that the
defendant has alien over the plaintiffs good or he has a better title to them than that
of plaintiff is slander of title. When the malicious statement relates to goods, then it is
known as slander of goods, For example allegation of defects in the goods
manufactured by plaintiff. The obvious defect of such statement is to depreciate the
value of the plaintiffs good. The law permits making of statement, however false and
malicious, whereby a trader claims his good to be better than those of his rival traders
but makes it actionable when there is false and malicious depreciation of the quality
of anothers goods.

33. P.K. Oswal Hosiery Mills vs. Tilak Chand, A.I.R.1969 Punjab 150, 159

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OBJECTIVES OF STUDY

The objective of study is to find out that how does Malicious falsehood differs from
defamation and what are the different forms of this wrong. What are the remedies
available under the present legal system? To find out the cases related to this is also an
objective of the researcher.

RESEARCH METHODOLOGY

The researcher has primarily relied on the Doctrinal Method. The research is based
on comprehensive study of online journals, documents, books and cases. Uniform
citation method has been used throughout the project report.

HYPOTHESIS

Malicious falsehood is the type of the statement, which are made intentionally to
harm the interest of another. It is different from deceit and defamation in certain ways.

RESEARCH QUESTIONS

1. How is malicious falsehood different from deceit and defamation?

2. What are the different wrongs under this?
3. Which points should be proved to bring an action for malicious falsehood?
4. What are the different remedies available for different wrongs?

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ESSENTIALS OF TORT OF MALICIOUS FALSEHOOD

1. MALICIOUS PUBLICATION
The defendant must have intended to publish the statements complained of,
and have done so with an improper motive. Evidence of malice might include
proof:
That the defendant knew the relevant statements were false;
That the defendant was reckless as to the truth or falsify of the
statements when publishing them, or;
That, even though the defendant believed the statements to be true,
their dominant motive in publishing the statements was to injure the
claimants interests.

2. FLASITY
It is up to the claimant to prove that the statements complained of were untrue
unlike in defamation claims, where the falsity is presumed and the burden falls
on the defendant to prove that the statements are true. Furthermore, the
statements complained of, even if false, must be more than mere puff
between trade rivals, such ass that often seen in comparative advertising.
There is no defense equivalent to the honest opinion defense available in
defamation. This means that the defendant cannot contend that the interference
is one that the honest person could have believed to be true.

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SLANDER OF TITLE OR SLANDER OF GOODS
The phrase slander of title was formerly used to refer to disparagement of a
persons title to real property 4, but is now a days a generic name for the
disparagement of property movable or immovable, corporeal or incorporeal. 5
The disparagement need not necessarily relate to title but may be of any
description, e.g., a false statement that a persons house, which he was proposing
to sell, was haunted6. Slander of title is a false malicious statement about a
persons property or his business or relates to his material interest. 7 The phrase
slander of goods is used when the disparagement relates to goods. The
disparagement may be depreciating the quality or pointing out some other
defects, e.g. A false statement alleging As goods to be an infringement to Bs
trademark and warning As customers not to buy them. The leading case of
Ractliffe vs. Evans is an instance of a false representation about business. The
defendant was held liable for publishing in his newspaper a false statement that
the plaintiff has ceased to carry on his business and that his firm didnt then
exist, and thereby causing loss of customers to the plaintiff.

4 Brook vs. Rawl (1849) 4 Ex 521

5 Malachy vs soper (1839) 2 Bing NC 371
6 Barret vs. associated newspapers (1907) 23 TLR 666
7 PKOH Mills vs. Tilakchand, AIR 1969 Punj 150

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POINTS TO BE PROVED IN AN ACTION FOR SLANDER OF

TITLE OR SLANDER OF GOODS
The essential constituents in the action are damage8 and Malice9. The plaintiff must
prove the following points:

(A) Publication of a false statement:

That the defendant published a false statement or representation. It is for the plaintiff
to prove the falsehood or untruth of the statement while in the case of a defamatory
statement the law presumes it to be false until the contrary is proved. The statement
may be oral or written and courts in England dont make any such distinction as
between libel and slander.

(B) Disparagement:
That the said publication disparaged the plaintiffs property or business. If it
disparaged also his reputation directly or indirectly, then an action for defamation also
lies. The principle applicable to the interpretation of alleged defamatory statement
also applies here.10 A person is entitled to puff his own goods, e.g. by saying that his
goods are the best in the market or even that they are superior to the plaintiffs. No
action lies for such a statement because a purchaser doesnt usually rely on them to
the exclusion of his own judgment. Besides if an action were allowed it would enable
traders to use it as a means of advertisement. In White vs. Mellin, 11 the defendant, a
chemist was not held liable for such kind of statement. However if the defendant
makes any untrue statement of fact about plaintiff, then it is another matter.12

8 Malachy vs. soper (1836) 3 Bing NC 371

9 Peter vs. Baker (1847) 3 Bing NC 371
Halsey vs. brotherhood (1880) 15 Ch D 514
10 Griffiths vs benn (1911) 27 TLR 346
Cundey vs. lerwill & pike (1908) 24 TLR 584
11 (1895) AC 154
Leetham vs. Rank (1912) 57 sol jour 111
12 Young vs. macrae (1862) 3 B & S 264

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(C) DAMAGE
That the said publication caused special damage as a natural consequence, e.g.;
the loss of business, customers, a bargain, property, income or profits, or costs
incurred by being compelled to defend his title.

(D) MALICE
That the statement was published maliciously, 13i.e. Out of some motive other
than a bona fide claim of right. 14 Absence of belief in the truth of the statement
will be conclusive evidence of malice, but a merely careless publication of its not
by itself enough,

REMEDY FOR SLANDER OF TITLE OR SLANDER OF GOODS

The usual remedy is an action for damages or an injunction or both. 15 A
declaration may in particular cases be appropriate. 16 The measure of damages
would be pecuniary equivalent of the loss sustained as a natural consequence of
the disparagement. The amount may also vary according to aggravating or
mitigating circumstances in the case. The relief by way of injunction is a
necessary and appropriate one for preventing future injury to business. In an
action for injunction the plaintiff need not prove that damages has actually been
sustained, but it is enough if he shows that damages must or will necessarily
result.17
13 Shapiro vs. Lal moita (1923) 40 TLR 203
14 Wren vs. weild (1869) LR 4 QB 730
White vs. Mellin (1895) AC 154
Balden vs. Shorter (1933) CH 427
Tobacco co. vs. Bonnan AIR 1928 Cal 1
Steward vs. young (1870) LR 5 CP 122
15Hatchard vs. mege (1887) 18 QBD 771
16 Lewis vs. Lewis (1895) 1 All ER 1005
17 White vs mellin (1895) Ac 154
British Railway Traffic & electric co. vs CRC Co. (1922) 2 KB 260.

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PASSING OFF GOODS

The action for passing off goods is the remedy for a false representation tending
to deceive purchaser into believing that the goods, which the defendant is selling,
are really the plaintiffs.18 The representation may be by a direct statement to
that effect,19 or as is more usually the case, by conduct or by way of using the
distinctive mark, name number, design, get up or appearance of anothers goods.
In an action for passing off, the plaintiff need not prove either an intent to
deceive20 or actual damage.21 It is enough if he shows that the conduct of the
defendant was calculated or likely to deceive or mislead the public, ie, the
unwary or incautious and not the careful or intelligent purchaser. 22 On proof of
this fact that the plaintiff is entitled to an injunction, and even to nominal
damages though deception and damages have not actually resulted. 23 Originally
the common law courts insisted on proof of fraud, but courts of equity
intervened by granting injunctions even in case where the imitation of a
trademark was made in ignorance, provided such imitation was likely to deceive
or mislead public. The doctrine of the equity court was accepted as a part of the
common law after the amalgamation of the two sets of courts by the judicature
act. While the English and Indian acts allow actions for infringement of
registered trademark, they dont preclude the common law remedy for the
actions of passing off goods.24
18 Singer Machine manufacturers vs. Wilson (1876) 2 Ch D 343
19Ainsworth vs. Walmsley (1866) LR 1 Eq 518
20 Gujarat G & M Co. vs. Swadeshi MillsCo., AIR 1939 Bom 118
21 Blofeld vs. Payne *(1833) 4B & Ad 410
Draper vs. Trist (1939) 3 All ER 513 (CA)

22 Singer mfg. co. vs. Loog (1882) 8 AC 15

Indian dental works vs. Dhanakoti AIR 1962 Mad 127
23 Draper vs. trist (1939) 3 ALL ER 513 (CA)
Reddway vs. Bentham Hemp Spinninig co. (1892) 2 QB 639
Haji jamal & co. vs Abdul Kareem & co.(1933) ILR 57 Mad 600
Malayan tobacco distributors vs. The united king tobacco, AIR 1933 PC 138
24 Singer machine manufacturer vs. Wilson (1876) 2 Ch D 434

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POINTS TO BE PROVED IN AN ACTION FOR PASSING OFF

GOODS
The plaintiff must prove that his goods were known to the public by some
distinctive name, mark, get-up, appearance, or badge, and that the defendants,
use or imitation of the name, mark etc, was likely to mislead the public the public
into believing that the defendants goods were the plaintiffs. The defendants use
or imitation can obviously have no such effect when he uses the mark for a
different class of goods from the plaintiffs. Where the imitation is of some well-
known device, design, or get-up, chosen by plaintiff, it would ordinarily be
fraudulent and deceptive. Where the respondent began to market a drink called
pub squash with cans and advertising similar to those of appellants soft drink
solo brought in the market one year earlier, there was no cause of action as the
cans and advertising has not become distinguishing features of solo. The test is
whether the product has derived from advertising, a distinctive character that
the market recognizes.25 Where name and words are chosen to refer to an article,
the position is less simple. If the name and word is peculiar and uncommon and
arbitrarily chosen by the plaintiff for his goods, he can easily establish that the
imitation of it by another was fraudulent. 26 However it is a different matter if the
words are ordinary or descriptive. Every person has a right to use of the English
or any other language and one trader cannot complain of the use of a name by
another unless it has acquired a distinctive application to the plaintiffs goods.
For instance, it was held that the word naphtha was descriptive of the article
and could not be monopolized by one trader. 27 A brewer who had been in the
Warwick tyre co. vs. new motor and general rubber co. (1910) 1 Ch 248
25 Thomas bear & sons vs. prayag (1940) ILR ALL 446, AIR 1940 PC 86
26 Ford vs, Foster (1872) LR 7 Ch 611
Upendra nath vs. The union Drug co. AIR 1926 cal 837
Unani Dawkhana Vs. Hamdard AIR 1930 Lah 999
27 Fels vs hedley (1930) 20 TLR 69

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habit of putting on his bottles, a label with the words nourishing stout could
not restrain another brewer from using these words on his labels. 28 However
even a descriptive name may acquire a special and exclusive application to a
persons goods. In that case he has a right to restrain anothers use of it. In
Reddaway vs. Banham,29 the words camel hair belting were held to have
acquired a special application to the plaintiffs goods of that description, and the
defendant was restrained for using those words for article. It is not merely exact
but even a colorable imitation of a mark or name that will be restrained if it has a
tendency to mislead the public. A name, which has a special and secondary sense
with reference to a persons goods, may cease to have it and become one of
general application by being employed by others. If , however it is ambiguous
whether a name is a distinctive or general one , it is the duty of the person
adopting it to take care that he does not mislead. For instance, the plaintiff used
the name corona for a long as a distinctive of a brand of cigars. It was held that
the name being ambiguous, the defendant should be restrained from selling a
cigar of any other brand as corona unless it was made clear to the customers
that it was not the corona brand. Whether the plaintiff has established a
reputation for the name, mark, etc. is so similar as to mislead purchasers would
depend on all the circumstances of the case. The plaintiffs were manufacturing
cycle bells under the trade mark B.K. which was seen by the public. If the
defendants were allowed to make cycle bells under the mark B.K-81 there was
likelihood of diversion of trade from the plaintiffs to the defendants. It was an
injury against which the plaintiffs were entitled to injunction. If intent to
defraud were shown, it would of course go a great way to prove probability of
deception. A manufacturers of goods as well as their importer or vendor can
acquire a right to an exclusive name, mark etc. 30 a person who himself has pirated

Linoleum manufg. Co. vs Nairn (1878) 7 Ch D 834

Canadian shredded wheat co. ltd. Vs. Kellog co. of Canada ltd. 1938 PCC 143
28 Rogger vs. Findlater (1873) LR 17 Eq 29
Coca cola co. of Canada vs. pepsi-cola co. of Canada ltd. (1942) 1 ALL ER 615 (PC)
29 (1896) AC 199
30 Imperial tobacco co. vs Bonnan (1924) ILR 51 cal 892 PC
Meera sahib vs. Abdul Aziz (1938) ILR Mad 466

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anothers trademark can not complain of an infringement of it. 31 The above
principle applies to the names, titles of books, periodical, newspapers etc. an
author can restrain the publication in his name of a book not written by him.
Foreign trademarks and trade names are protected in courts of this country by
reason of an international convention for protection of industrial property. In a
Bombay case, the high court allowed an action filed by pujaris or priests of a
village temple for an injunction to prevent the defendants from installing an idol
with the same name in another temple. This action bears no analogy to a passing
off action but could be regarded as one for a disturbance of the plaintiffs
enjoyment of their religious office and its emoluments. On this ground, this case
falls outside the principle of free competition recognized in the old case of the
Gloucester grammar schoolmaster.
Plaintiff popularized the trademark Annapurna from his product, Atta from
March 1995. In fact, that trademark was being used by defendants for his
products like salt etc, much prior to the plaintiffs product came into market.
Defendant started using that trademark for Atta also subsequent to the plaintiffs
production in the name of Annapurna. It was held that defendant was entitled to
use his trademark and the court refused to grant injunction in favor of the
plaintiff.32

IMITATION OF THE NAME OF ANOTHERS

BUSINESS

31 The leather cloth co. vs. American leather cloth co. (1863) 4 De GJ & S 137
32 M mahendra shaw vs.tiruchy floor mills, trichy 1997(2) ALD 251

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On principles similar to those of an action for passing off, an action will lie
against a person for imitation of the name of anothers business if it is likely to
mislead the public.33 When a person uses his own name simplicities for his
business, there can be no right of action against him unless intent to mislead is
also present. If however, he uses an added or abbreviated form of his name, he
will be restrained on the proof of probability of deception. The Indian companies
act enacts that a company cannot be registered in a name identical with
anothers or so closely resembling it as to calculate deceive. The national bank of
India got an injunction against a new bank started under the name of The
National Bank of Indore.34
If there is no chance of deception or confusion by the use of a name, the action
for passing off doesnt lie.

USE OF A NAME
A person has no right to sue when the use of his name or that of his property by
another does not injure his trade or business. An action to restrain the defendant
from using a the name for his villa similar to that of plaintiffs was dismissed,
though such use might cause inconvenience to the plaintiff35. Similarly a person
who was using the word street London as his telegraphic address failed to get
an injunction to prevent a bank using the same words 36. However an action will
lie to restrain the use of anothers name, real or assumed if it is a business
name.37 This assumes that the business is similar. A radio artist giving programs
Under the fancy name uncle Mac could not get an injunction to restrain a
manufacturer marketing a food product under the name uncle Macs puffed
wheat.38 The use of a persons name by another may be defamatory as where the
name of a doctor of repute is used without his authority to puff some quack

33 Leather cloth co. vs. American leather cloth co. (1865) 11 HLC 523
34 National Bank of India vs. National bank of Indore (1922) 24 Bom LR 1181
35 Day vs. Brownrig (1878) 10 Ch D 294
36 Street vs. Union bank of pain (1885) 30 Ch D 156
37 Hinnes vs. Winnick (1947) Ch 708
38 McCullock vs. Lewis May ltd. (1947) 2 ALL ER 845

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medicine.39 A person cannot be prevented from use of his name, unless some
special manner of using it affects anothers business.

REMEDY
The civil remedy is an action for passing off. Besides this, a criminal prosecution
is also available for the offence of using a false trademark or property mark, 40 but
not if the person using the mark had no intent to defraud. 41
In the action for passing off, the plaintiff can ask for:
(A) Damages
(B) Injunction
(C) Other appropriate reliefs like delivering up the counterfeited articles .

Damages represent the actual loss suffered by the plaintiff. He may elect between
damages and an account of the profits obtained by the defendant after
commencement of the wrong. However, neither damages nor profits are available
against an innocent defendant who was not aware of the plaintiff in the
particular name or mark at the time of the infringement. However, an injunction
is available against him.
There can be no claim foe penal and exemplary damages. The plaintiff is not
bound to wait till the infringement of a trademark is repeated or till he gives
warning and it is disregarded, because, the life of a trademark depends upon the
promptitude with which it is vindicated.

39 Dockrell vs. Dougall (1899) 80 LT 556

40 Section 478-489, IPC
Mohammd Raja vs. E, AIR 1930 Oudh 360
41 Section 48-86, IPC

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The court has also power to grant other appropriate relief. if the defendant is
found to have spurious articles marked with the false mark in his possession, he
can be ordered to remove the marks or deliver up the articles. 42

OTHER FORMS OF MALICIOUS FALSEHOOD

Apart from the above-discussed forms of malicious falsehood, an action would lie
for intentionally causing damage to a person by making any false statement or
representation to another.43 For instance, in an early case44, damages were
awarded for a false statement made by the defendant to a person to whom the
plaintiff was engaged to be married, that the plaintiff was a married woman and
his own wife, then as a result plaintiff lost the marriage. In another case, 45 the
plaintiff recovered damages for loss of business due to the defendant publishing
a false statement that the plaintiffs wife who was assisting him in his shop was
guilty of adultery. Similarly, an action would lie for loss due to a false statement
that one of the assistants in the plaintiffs shop had a contagious disease. These
statements though not defamatory of the plaintiff are actionable under the
category of malicious falsehood. However, no action will lie if there is no malice.
Where the plaintiff, a professional pianist, sued the proprietors of a music hall for
a certain week, whereby she lost engagements else where, it was held that the
defendants made a bona fide mistake and were not liable. 46

42 Slazenger vs. Fentham (1889) 6RPC 531

Upmann vs. Elkann (1871) LR 12 Eq 140
43 Ractliff vs. Evans (1892) 2 Qb 524
44 Shephered vs. Wakeman (1661) 1 Sid 79
Dixon vs. Holden (1869) LR 7 Eq 488
45 Riding vs. Smith (1876) 1 Ex D 91
46 Shapiro vs. La morta (1923) 40 TLR 201

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CONCLUSION

Malicious falsehoods are published statements, which are false without

necessarily being defamatory.
In order to prove malicious falsehood, a claimant will need to prove that:
The words are false

The words were published maliciously

The words published have caused special damage or financial loss to the
claimant.

There is a difference between Defamation and Malicious Falsehood. The Motive is

irrelevant in the case of the defamation while it is not so in the case of the
malicious falsehood. There is also a difference between deceit and malicious
falsehood. It is also known as injurious falsehood. There are different forms of
this wrong like slander of goods or slander of title, Passing off goods, imitation of
name of others etc.

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BIBLIOGRAPHY

1. http://www.withyking.co.uk/uploads/news/857//defamation_&-
malicious_falsehood.pdf

2. http://catalogue.pearsoned.co.uk/assets/hip_gb_pearsonhighhered/samplechapt
er/140825414X.pdf

3. www.thompsons.law.co.uk/factsheets/thompsons-defamation-factsheet.pdf

4. http://www.agc.gov.my/akta/vol.%206/act%20286.pdf

5. www.legislation.gov.uk

6. www.5rb.com

7. www.carruthers-law.co.uk

8. Law of Torts by Dr. R.K. Bangia

9. Ratanlals and Dhirajlals Law of Torts

10. Rama Swami Iyer, Law of Torts

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